1976 (4) TMI 211

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..... nder the Maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in habeas corpus proceedings. [371 G-H, 372 A] The fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of all other laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial functions though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provisions of Articles 21 and 22 the more drastic must .....

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..... ly the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure. If the enforcement of a right to be free, resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure. which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would introduce a' distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975. [315 F-G] If the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them. [329 G] A court cannot. in exercise of any supposed inherent or implied or unspecified power, purport to enforce or, in substance enforce, a right the enforcement of which is .....

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..... hts are elevated to a new level of importance by the Constitution. Any other coextensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights. [329 B] The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative. Or judicial organs (i e. Article 20) of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. The intention was to exclude all other control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m. [319 A-C & 329 C] Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Art. 19 practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in .....

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..... onstitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights. [325 B-D] His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. SCR @ 1. Satish Chandra Chakraworti v. Ram Dayal De ILR 48 Cal. 388 P @ 407-410, 425 and 426: Waghela Rajsanji v. Sheikh Masludin and ors. 14 Indian Appeals p. 89 and Baboo Seo Thakur Dhobi v. Mst. Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to. Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom. by implication, is covered by Article 21 of the Constitution. [328 E-F] 1. C. Golaknath & ors. v. Sate of Punjab and Another [1962] 2 SCR 762. Even if Art. 21 is not the sole repository of all personal freedom, it will be clear, that all aspects of freedom of person are meant to be covered by Articles 19, 21, and 22 of the Constitution. If the enforcement of these rights by Courts is suspended during the emergency, an inquiry by a court into the question whether any of them is violated by .....

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..... m ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. [332 B-C] Haradhan Saha & Anr. v. The State of West Bengal and ors. [1975] 1 SCR 778; Khudiram Das v. State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras v. V.G. Row AIR 1952 SC 197 @ 200 and Rex v. Halliday [1917] A.C. 260 @ 275, referred to. It is true that the Presidential order of 1975 like the Presidential order of 1962, does not suspend the general power of this Court under Art. 32 or the general powers of High Courts under Art. 226, bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order. Courts, even in habeas corpus proceedings, do not grant relief independent of the rights of the person deprived of liberty. If the locus standi of a detenu is suspended, no one car. claim to get his right enforced.,   .....

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..... ion. [344 G] Liversidge v. Sir John Anderson [1942] AC 206 and Rex v. Halliday Ex Parte Zadiq [1917] AC 260, referred to. Under our Constitution, there is no distinction between the effects of a declaration of emergency under Art. 352(1) whether the threat to the security of the State is from internal or external sources. Presidential declarations under Art. 352(1) and 359(1) of' our Constitution are immune from challenge in courts even when the emergency is over. A noticeable feature of our Constitutions is that, whereas the consequences given in Art. 358 as a result of a Proclamation under Art. 352(1) are automatic, Presidential orders under Article 359(1) may have differing consequence, from emergency to emergency depending upon the terms of the Presidential orders involved. And then, Article 359(1A) made operative retrospectively by the 38th Constitutional amendment of 1st August 1975, makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution. [348 A-D] The striking differences in the terms of the two Presidential orders are: (1) The Presidential order of 196 .....

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..... m the provisions of S. 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on January 25. 1976, making s. 16A(9) operative retrospectively from June 25, 1975. [352 F-H] There is no doubt that the object of the Presidential (order of June '27, 1975, by suspending the enforcement of the specified rights, was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended. This was within the purview of Article 359(1). Hence objections that powers of the courts under. Art. 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. [353 A-B] The term Rule of Law is hot a magic wand which can he waved to dispel every difficulty. It is not an Aladin's lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have It can only mean what the law in a particular State or country is and what it enjoins. This means that the Rule of Law must differ in shades of .....

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..... minal Procedure Code in 1923, is incorrect. The sweep of Art. 359(1) of the Constitution taking in the jurisdiction of "any court" is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right. [355 D-E] Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27, 1975 read with the amended provisions of s. 16A(9) of the Act. In a case in which the officer purporting to detain had in fact, not been invested at all with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain. [357 C-E] Makhan Singh v. State of Punjab [1964] 4 SCR 797 @ 821- 822 and 5. Pratap Singh v. State of Punjab [1964] 4 SCR 733, referred to. The suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act, in official capacities which they could and do hold. A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf, c .....

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..... ecutive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess. [362 H] It does not follow from a removal of the normal judicial superitendence even over questions of vires, of detention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face of the return itself, it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of the Act is that although such, executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves. It enhances the powers and therefore, the responsibilities of the Executive. [363 F-H] In actual practice, the grou .....

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..... ven as it now exists, this may have left the question in doubt, whether courts could call upon the detaining authorities to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions]. [337 A-B] Section 16A(9) makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An. 226, It is clear that the validity of s. 16A(9) cannot be challenged on the ground, of any violation of Part III of' the Constitution in view of the provisions of Art. 359(1)(A). [353 C-D] A challenge to the validity of s. 16A(9) based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not wellfounded. There is no such strict separation of power under our Constitution No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powe .....

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..... procedural protection to the right of Personal freedom. To do so is really to take the Presidential order under Article 359(1) of the Constitution ineffective. [368 B-C] No question of "malice in law" can arise in habeas corpus proceedings when such a protection is suspended. As regards the issue of "malico in fact" it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of s. 16 of the Act. The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers. [1368 D-E] Section 18, though unnecessary, appears to have been added by way of abundant caution. It cannot be assailed on the ground of violation of basic structure. [342 F-G] The theory of basic structure oil the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with the constitutional provisions. The Constitution cannot have a base out away from the superstructure. Indeed, the emergency provisions could themselves be reg .....

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..... ind of jurisdiction exercised by this Court or by the High Courts under the provisions of Art. 136 and 226 respectively, but may result in misapplications of the law declared by courts to situations for which they were not intended at all. [306 D-E]. Per Chandrachud, J. The order issued by the President on June 27, 1975, under Article 359(1) does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 BC] The aforesaid Presidential order, however, deprives a person of his locus stand; to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundamental Rights which are mentioned in the order Such deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the order. [413 C-D] The dominant purpose of the present petitions is to obtain an order of release from detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration t .....

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..... does not bring about any amendment of Article 226 within the meaning of Art. 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power. Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other. 1;385 G-H, 386 A-B] The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of relief other than or less than the release of the detenu from detention. [414 B-C] Detention without trial is a serious on personal freedom but it bears the sanction of our Constitution. The "clear and present danger test" evolved by Justice Holmes in Schenck v. United States, 249 U.S. 1919 may well be extended to cases where there is a threat of external aggression. [384 D-E] The object of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition for the writ of habeas corpus. Article 359 aims at empowering .....

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..... s wider in scope than Art. 358. In view of the language of Art. 359(1) and considering the distinction between it and the provisions of Art. 358, there is no justification for restricting the operation of Art. 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights. [386 G-H, 387 A-E] Sree Mohan Choudhary v. The Chief Commissioner, Union Territory of Tripura [1964] 3 SCR 442 and Makhan Singh v. State of Punjab [1964] 4 SCR 797. referred to. Article 359(1) is as much a basic feature of the Constitution as any other, and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore. Article 359(1) which is an emergency measure, must be construed consistently with that position. The argument of basic feature is wrong for yet another reason that Art. 359(1) does 'not provide that the Executive is free to disobey the laws made by the Legislature. To permit a challenge in a court of law to an order of detention, which is an Executive action, on the ground that the order violates ar Fundamental Right mentioned in the Presidential order, is to permit the detenu to e .....

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..... 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose. Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution. The existence of the right to personal liberty in the pre constitution period was surely known to the makers of the Constitution. [395 H, 396 A-D] The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less. That right along with certain other rights was elevated to the status of a Fundamental Ri .....

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..... 3 SCR 530, 578, referred to. The circumstance that The pre-constitution rights continued in force after the enchantment of the Constitution in view of Art. 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty. having the same content as the right conferred by Art. 21 would fall within the mischief to the Presidential order. [398 C-H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed the eclipse also is removed and the law becomes valid. [399 A-B] As regards the doctrine of merger, every prior right to personal liberty merged in the right to personal liberty conferred by Part III. But whether it merged or not, it cannot survive the declaration of suspensi .....

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..... icular Act. [405 B-H, 406 A, 407 B-C] Makhan Singh v. State of Punjab [1964] 4 SCR 797; Dr. Ram Manohar Lohia v. State of Bihar [1966] 1 SCR 709. K. Anandan Nambiar and Anr. v. Chief Security Government of Madras & ors. [1966] 2 SCR 406. State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr. [1966] 1 SCR 702, discussed and distinguished. A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise. In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforcement of any of his Fundamental Rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law. So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides. [409 E-F] Makhan Singh v. State of Punjab [1964] 4 SCR 797; Jai Chand Lall Se .....

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..... espect of whom an order is made or purported to be made under s. 3", in place of the words "detained under this Act", does not render the section open to a challenge on the ground of excessive delegation. The words "purported to be made" have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act. Such a challenge is even otherwise barred under the Presidential order. The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the Maintenance of Internal Security Act, 1971. [412 B-C] His Holiness Kesvananda Bharati Sripadagalarvaru v. State of Kerala [1973] Supp. SCR I and Makhan Singh. v State of Punjab [1964] 4 SCR 797 referred. A jurisdiction of suspicion is not a forum for objectivity. The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of its order, the stated purpose of detention is within the terms of law. [414 E-F] Zamora's case [1916] .....

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..... etent to make or to take. the words 'but for the provisions contained in that part" that is, but for the Fundamental Rights, mean "if the Fundamental Rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even the Presidential order mentions Art. 21, clause (1A) of Art. 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law. It' an order or dentention is made by the executive without the authority of law it would be invalid and its invalidity would not be cured by clause (IA) or Art. 359 because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under- Art. 21 by reason of clause (IA) of Art. 359 and the detenu would be entitled to complain of such unlawful detention as being, in violation of' Art. 21 except in so far as his right tor move the court for that purpose may be held to have been taken away by .....

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..... sonal liberty of an individual against illegal detention, resulting in a departure from the well settled constructional position of Art. 21. [432 B-D] No attribute of personal liberty can be regarded as having been calved out of Art. 21. That Article protects all attributes of persona; liberty against, executive action which is not supported by law. When a person is detained. there is deprivation of personal liberty within the meaning of Art. 21. 1433 A-BI Kharak Singh v. State of U.P. & Ors. [1964] 1 SCR 332. referred to The protection under Art. 21 is only against State action and not against private individuals and the protection, it secures, it is a limited one. The only safeguard enacted by Art. 21 is that a person cannot be deprived of his persona liberty except according to procedure prescribed by "State made" law. It is clear on plain natural construction of its language that Art. 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law". When a law prescribes a procedure for .....

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..... law of the land and was uniformly administered by the courts. It was, clearly "law" in force" and, ordinarily, by reason of Art. 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution, until some aspects of' this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution. [439 B-C] When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a Fundamental light and enacted as such in Art. 21, it cannot continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture, unless it were also enacted as a statutory principle by some positive law of the State. It cannot continue in force under Art. 372 when it is expressly recognised and embodied as a Fundamental Right in Art. 21 and finds a place in the express provisions of the Constitution When the Constitution makers have clearly intended that this right should be subject to the limitation imposed by Art. 359, clause (1) and (1A .....

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..... action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order. [461 C-D] When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in Art. 21 with the limitation that when there is a Proclamation of Emergency, the President may by order under Art. 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Art. 359 clause (1). It would be meaningless and futile for the Constitution-makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by Art. 21, if the detenu could with impunity, disregard such limitation and fall back on the right of personal liberty based on the Rule of Law. [445 E-G] Attorney General v. De Keyser's Royal Hotel, [1920] AC 508, discussed. Dhirubha Devisingh Gohil v. The State of Bombay [1955] I SCR 691, followed. On .....

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..... Tarsikka v. 'The State of Punjab [1966] 2 SCR 797; A. Nambiar v. Chief Secretary [1966] 2 SCR 406 and Sate of Maharashtra v. Prabhakar Pandurang Sangzgiri [1966] 1 SCR 702, distinguished. There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by Art. 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law. [459 D] His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. SCR 1 and Golak Nath & Ors. v. State of Punjab [1967] 2 SCR 762, referred to. If the positive law of the State degrees that no person shall be deprived of his personal liberty except according to the procedure described by law, the enforcement of such statutory right would not be barred by the Presidential order. But, there is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law. (in the contrary, s. 18 of the Maintenance of Internal Security Act, 1971, enacts that no person in respect of whom an order of detention is made or purposed to be made under s. 3 shall .....

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..... ry right to be released granted under s. 57, Cr. P C..[462 G] If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under Art. 359, clause (1). [463 G-H] This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it. The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of detention is one made by an authority empowered to pass such an order under the Act. If it is not, it would not be State action. and the petition would not be one for enforcement of the right confirmed by Art. 21. [463 G-H, 464 A] Once it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law, is to be found only an Art. 21 and nowhere- else it must follow necessarily that in challenging the legality of the detention, what the applicant claims is that there. is, , in fact fact, by the executive of the right of per .....

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..... two rights which the detenu has in this connection: one is the Fundamental Right conferred by Art. 22, clause (5) and the other is the statutory right conferred by s. 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. [463 B-C] The theory of reflection is clearly erroneous. If the right conferred under s. 8 were a reflection of the Fundamental Right conferred by Art. 22, clause (5) which is the object reflected must necessarily result in the effacement of the right under s. 8 which is said to constitute the reflection. But even if Art. 22 clause (5) were deleted from the Constitution, s. 8 would still remain on the statute book until repealed by the legislature. The Presidential Order would not therefore, bar enforcement of the right conferred by s. 8. [463 C-D] Fathima Beebi v. M. K. Ravindranathan (1975) Crl. LJ. 1164, over-ruled. It is true that sub-sec. (9) (a) of s. 16A does not specifically refer to any court. But, there is inherent evidence in the sub-section itself to show that it is intended to prevent disclosure .....

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..... ras [1950] SCR p. 80, referred. A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot, in the circumstances, be violative of Art. 226. But in order that if should not fall foul of Art. 226, is must be a genuine rule of evidence. If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court from effectively exercising its constitutional power under Art. 226. such an enactment would be void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a constitutional provision by employing an indirect method. It a legislative provision, though in form and outward appearance a rule of evidence, is in substances and reality something different obstructing or impeding the exercise . The jurisdiction of the High Court under Art. 226, the form in which the legislative provision is clothed would not safe it from condemnation. [474 B-C] It is well settled that in .....

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..... y assailed as invalid. [476 G-H, 477 A] There is no warrant for reading down sub-section 9A of s. 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under Art. 226 and is accordingly not void. [477, C-D] If the declaration under sub-section (2) or sub-s. (3) is invalid, subs 9(a) of s. 16A will not be attracted on the grounds of information and materials on which the order of detention is made, would not be privileged under sub section therefore, sub-section 9(a) of s. 16A enacts a genuine rule of evidence. [477 A-B] [His Lordship thought it unnecessary to go into the question of construction and validity of s. 18 of the Maintenance of Internal Security Act.] [464 A] An obiter cannot take the place of the ratio. Judges are not oracles. It has no binding effect and it cannot be regarded as conclusive on the point when considering the observations of a High judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad .....

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..... 21 had not been drafted and inserted in Part III, in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law. There are no case, to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to Art. 21, a claim was ever sustained by the court, that the State can deprive a person of his life or liberty without the authority of law. [302 H, 269 H, 270 A C] Olmstead v. United States 277 U.S. 438 (1928); James Sommersett's case (1772), 16 Cr. Pract. 289. Fabrigas v. Mostyn 1 Cowp., 161. Ameer Khan's case 6 Bengal Law Reports 392. Eshugbai Eleko v. Officer Administering the Government of Nigeria, AIR (1931) P.C. 248; Prabhakar Kesheo Tare & Ors. v. Emperor AIR (1943) Nag. 26; Vimlabai Deshpande v. Emperor A.I.R.. 1945 Nag. 8: Jitendranath Ghosh v. The Cheif Secretary to the Government of Bengal ILR 60 Cal. 364; In re: Banwari Lal Roy & Ors. 48 CWN 766: Bidi Supply Co. v. The Union of India & Ors. [1956] SCR 267 and Baheshar Nath v. The Commissioner of Income-tax, Delhi & Rajasthan & Anr. [1959] Supp. (1) 528, referred to. The view, that when .....

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..... 21 would not militate against the inference that Art. 21 is not the sole repository of the right to life or personal liberty. Nor is it the effect of Art. 21 that penal laws get merged in Art. 21 because of the act that they constitute law as mentioned in Art. 21, for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in Art.. 21 would also result in suspension of the right to move any court for enforcement of penal laws. At one time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law. [273 A-C] Director of Rationing and Distribution v. 'The Corporation of Calcutta & ors. [1961] 1 SCR 158, relied on. It is difficult to accede to the contention that because of Art. 21 of the Constitution, the law which was already in force that no One could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction or interpretation warrants such an inference. The constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ .....

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..... s of the municipal law are possible, The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations. While dealing with the Presidential Order under Art. 359(1) such a construction should be a adopted. as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter. It is plain that such a constructional is not only possible, it is a also pre-eminently reasonable The Presidential orders therefore, should be so constructed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. 1276 A-B. 277 D-E] Corocraft Ltd. v. Pan American Airways Inc [1969] 1 All. E.R. 80; Article 51 of' the Constitution, H. H. Kesavananda Bharati v. State of Kerala [1973] Supp.. SCR I, referred to. The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence o .....

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..... ; Bishan Das & Ors. v. The State of Punjab & Ors. [1962] 2 SCR 69; S. G. Jaisinghani v. Union of India & Ors. [1967] 2 SCR 703. United States v. Wunderlick 342 US 98; John Wilkes's case (1770) 4 Burr. 2528 at 2539 and Smt.. Indira Nehru Gandhi v. Shri Rai Narain. [1976] 2 SCR 347, referred to. According to Art. 21. no one can be deprived of his right to personal liberty except in accordance with the procedure established by law. Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates the existence of the substantive power. When Art. 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the procedure for the exercise of such power. When right to move in court for enforcement of right guaranteed by Art 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power. [303 D-F] .....

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..... d but for the provisions contained in Part 111 of the Constitution be competent to make or take. The word competent has a significance and it is apparent that despite the Presidential order under Art. 359(1) in the case of executive action the competence of the State to take such action would have to be established. Such competence . Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution. To put it in other words, clause (IA) of Art. 359 does not dispense with the necessity of competence to make laws. Or take executive action. But it would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights. [283 D-E] Though, there is no reference to substantive power in Art. 21, it would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of that power [284-D] The suspension of the right to move a court for the enforcement of the right contained in Art. 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liber .....

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..... ory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non-complince with statutory provisions entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters effecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the Statute would be circumscribed by its provisions and it would not the permissible to involve som .....

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..... executive over the legislate and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution. The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d-tract from the above conclusion. The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative as manifested by the statutes passed by the legislature. The Constitution further contemplated that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts. [290 G-H, 291 A-C] No one can call deny the power of the State to assume vast powers of the detention in the interest of the security of the State. It may indeed the necessary to do so to meet the peril acing the nation. The consideration of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individual can only take as secondary piece. The motto has to be who lives, if the country dies. Extraordina .....

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..... e their own opinion for that of the authority concerned regarding the necessity of detention. [295 E-F] Sharpe v. Wakefield [1891] A.C. 172 at p. 179 and Ross v. Papadopollos [1958] 2 All. E.R. 23 (on P. 33), referred to.   Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it May be, in proceedings based on wrongs independent or contract, a very material ingredient in the question of whether a valid cause of action can be stated. [269 C-D] Shearer v. Shields [1914] A.C. 808 Bhut Nath v. State of West Bengal, [1974] 3 S.C.R. 315, referred to. In view of the Presidential Order suspending the right of the person to move any court for enforcement of specified Fundamental Rights including the one under Art. 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of Art. 22(5). The Presidential order would. however not stand in the way of the infirmity of the vagueness of grounds of detention because of the contravention of s. X(l) of .....

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..... in the High courts. The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints. It would not be permissible or proper for the Supreme Court to short circuit the whole thing and decide the matter by by-passing the High Courts who are seized of the matter. [302 F-G and 304 D-E] Section 18 of the Maintenance of Internal Security Act would not detract from the view that Art. 21 is not the sole repository of the right to personal liberty. The principle that no one shall be deprived of his life and personal liberty without the authority of law is also an essential facet of the Rule of law. Section 18, therefore, cannot be of much assistance. The view that s. 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct. There has been no amendment of s. 3 of the Act. [274 D-F] Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by s. 3 of the Act, it shall be taken to be an order under s. 3 of the Act. Apart from the fact that such an inference is not permissible on the .....

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..... t resort. [304-E] A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed. [304-G] Prophets with Honor by Alan Barth 1974 Ed. p. 3-6. referred to. Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice. RAY, C.J.   These appeals are by certificates in some cases and by leave in other cases. The state is the appellant, The respondents were petitioners in the High Courts. The respondents filed applications in different High Courts for the issue of writ of habeas corpus. They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June, 1975. They challenged the legality and validity of the orders of their dete .....

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..... ent or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground. As for Article 359 clause (1A) has been inserted by the 38th Constitution Amendment Act. The 39th Constitution Amendment Act amended Articles 71, 329. 329(A) and added Entries after Entry 86 in the Ninth Schedule. No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals. It is appropriate to mention here that on 3 December, 1971 in exercise of powers conferred by clause (1) of Article 352 of the Constitution the President by Proclamation declared that a grave emergency exists whereby he security of India is threatened by external aggression. On 25 June, 1975 the President in exercise of powers conferred by clause (1) of Article 352 of the Constitution declared that a grave. emergency exists whereby the security of India is threatened by internal disturbances. On 27 June, 1975 in exercise of powers conferred by clause (1) of Article 359 the President declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Artic .....

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..... challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1). Similarly, if the Executive take any action depriving a person of a fundamental right mentioned in the Presidential order any not complying with the law such Executive action cannot be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundamental rights mentioned in the Presidential order. The reason given by the Attorney General behind e principle is that in times of emergency the Executive safeguards the life of nation. Challenge to Executive actions either on the ground that these are arbitrary or unlawful has been' negatived in England in Liversidge v. Anderson([1942] A. C. 206) and Greene v. Secretary of State for Home Affairs([1942] A. C. 284) and also by this Court in Sree Mohan Chowdhury v. the Chief Commissioner, Union Territory of Tripura([1964] 3 S. C. R. 442) and Makhan Singh v, State of Punjab([1964 14 Sr C. R. 797). The contentions of the respondents are as follows: The arguments on behalf of the state mean that during the emergency there is no right to life or liberty. Article 358 is more .....

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..... enforcement of the principle of ultra vires viz., when the detaining authority has failed to comply with the conditions laid down in section 3 of the Act. In such a case the High Court has jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire.;. In England it was the practice in times of danger to the state to pass what were popularly known as Habeas Corpus Suspension Acts. Suspension did not legalise illegal arrest; it merely suspended a particular remedy in respect of particular offences. Accordingly it was the practice in England at the close of the period of suspension to pass an Indemnity Act in order to protect official concerned from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ. In England the Defence of the Realm Acts 1914-18 empowered the Executive to make regulations by order in Council for securing the public safety or for the defence of the realm. In The King v. Hallday Ex parte Zadiq ([1917] A. C. 260) the House of Lords held that a regulation was valid which authorised the Secretary of state to detain a British subject on the grounds of .....

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..... cess known in some foreign countries as ''suspending the constitutional guarantees" or in France as the proclamation or a State of siege''. Under the Act of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force. Under the Prevention of Crime (Ireland) Act, 1882 the Irish Executive was armed with extraordinary powers in the case of certain crimes to abolish right to trial by jury. The Act of Indemnity in England is a retrospective statute which frees persons who had broken the law from responsibility for its breach, and thus make acts lawful which when they were committed were unlawful. A Habeas Corpus Suspension Act does not free any person from civil or criminal liability for a violation of the law. The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State. While the suspension lasts, he will not be able to get himself discharged from prison. If the prisoner has been guilty of no legal offence then on the expiratio .....

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..... ] 2 A. C. 107) case and Lord Finlay in the Zadiq case (supra). In the Liversidge's case (supra) it was held that the. court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases. A court of law could not have before it the information on which the Secretary acts still less the background of statement and national policy what is and what must determine the action which he takes upon it. The Liversidge case (supra) referred to these observations in the Zadiq case (supra) "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement". Liberty is itself the gift of the law and may by the law be forfeited or abridged. There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to wha .....

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..... ned in the Presidential order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 355 provides for indemnity where as 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. A person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non-compliance with valid laws or acts without the authority of law. It cannot be said that the scope of Article 359(1) is only to restrict the application of the Article to the Legislative field and not to the Acts of the Executive. The reason is that and enforcement of the fundamental rights mentioned in the Presidential order is barred and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential order. .....

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..... duals contrary to the provisions of the Constitution. The courts interpret the Constitution and the laws in accordance with law and judicial conscience and not emotion. It is wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act. The question is not whether the Executive should comply or should not comply with the Act but whether a detenu has a locus standi to move any court for a writ in the nature of habeas corpus of the ground of non-compliance with the provisions of the Act. In period of public danger or apprehension the protective law which gives every man security and confidence in times of tranquility has to give way to interests of the State. The opinion in England has been that when danger is imminent, the liberty of the subject is sub ordinated to the paramount interests of the State. Ring leaders are seized and outrages anticipated. Plots are disconcerted, and the dark haunts of conspiracy filled with distrust and terror (See May-Constitutional History of England, Vol. l, pp. 130-135). While the courts of law are in normal times peculiarly competent to weigh the competing claims of individuals and government they are .....

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..... respect to any of the matters enumerated in the State list. The Federal Structure and representative government may suffer its full place in that situation. On the expiry of the operation of the Presidential order under Article 359(1), the infringement of the fundamental rights mentioned in the order, either by the legislative enactment or by an executive action, may be challenged in a court of law and if after such expiration Parliament passes an Act of Indemnity, the validity and the effect of such legislation may have to be scrutinised. [See Makhan Singh's case (supra) at 813]. The provisions in our Constitution relating to emergence, are of wide amplitude. The Executive is armed with special powers because individual interests are subordinated to State security. If law is invalid vis-a-vis fundamental rights there cannot be any challenge during the operation of Articles 358 and 359 on the ground that law violates fundamental rights. It is contradictory to say that there can yet be challenge to orders under that law as being not in accordance with law. Article 19 is a prohibition against law. Article 19 has nothing to do with the Executive. Law under Article 21 can be punitive .....

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..... e or they are made in abuse of law. The decisions of this Court in Mohan Chowdhury's and Makhan Singh's cases (supra) are that during the operation of a Proclamation of emergency no one has any locus standi to move any court for the enforcement of any fundamental rights mentioned in the Presidential Order. The ratio must necessarily apply to Executive acts because Executive acts are challenged on the grounds of being contrary to law and without the authority of law. The submission of the respondents that a person in detention can come to a court of law in spite of the Presidential order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu's challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the Legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22. If courts will in spite of the Presidential order entertain such applications and allow the detenus to enforce to start or continue proceedings or enforce fundamental ri .....

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..... Judges, three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh's case (supra). In Pandurang's case (supra) the ratio was that if a personal was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard was not suspended It, therefore, follows from the decisions in Pandurang's case and Makhan Singh's case (supra) that the ratio in both the cases was that the 1962 Presidential order being a conditional one the enforcement of rights under Articles 21 and 22 was suspended only to the extent of the conditions laid down in the Presidential order and the suspension could not operate in areas outside the conditions. There is no aspect whatever. Of any condition in the present Presidential order. Therefore, the decisions in Makhan Singh's case (supra) and subsequent cases following it have no application to the present cases where the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22. The conclusion for the forging reasons is that the Presidential order is a bar at the threshold. The heart of the matter is .....

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..... ith hereinafter. The majority view in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala([1973] Supp. S. C. R. 1) is that there are no natural rights. fundamental rights in our Constitution are interpreted to lie what is commonly said to be natural rights. The only right the life and liberty is enshrined in Article 21. In A. K. Gopalan's case (supra) it has been said that to read law as meaning natural law is to lay down vague standards. Law means law enacted by the State. Law must have some firmness. Law means positive State made law. Article 21 has been interpreted in A. K. Gopalan's case (supra) to include substantive as well as procedural law in the phrase "procedure established by law". The reason is obvious. A law providing for procedure depriving a person of liberty must be a law made by statute. P. D. Shamdasani v. Central Bank of India Ltd.( [1952] S. C. R. 391) held that Article 21 is prohibition against unauthorised executive action. In Shrimati Vidya Verma through next friend R. V. S. Mani v. Dr. Shiva Narain Verma([1955] 2 S. C. R. 983) law in Article 21 has been held in mean State made law. In Makhan Singh's case (supra) it was decided that during .....

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..... iction in the law. In the present appeals, the Act is not challenged nor can it be challenged by reason of Article 358 and Article 359(1A) and the Presidential order mentioning Article 19 as well. If any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right the source of that right is in Part III and not in any pre-existing right. Such pre-Constitution right has been elevated by Part III as a fundamental right. The pre-existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution. See Dhirubha Devisingh Gohil v. The State of Bombay([1955] 1 S.C.R. 691 at 693-97). If there is a pre-Constitution right which is expressly embodied as a fundamental right under our Constitution, the common law right has no separate existence under our Constitution. (See B. Shanknra Rao Badami & Ors. v. State of Mysore & Anr.([19691 3 S. C. R. 1 at 11-13). If there be any right other than and more extensive than the fundamental right in Part III, such right may continue to exist under Article 372. Before the commencement of the Constitution the right to .....

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..... ch could be carried over after its commencement under Article 372. Law means enacted law or statute law. (See A. K. Gopalan's case (supra) at pp. 112, 199, 276, 277, 288, 307, 308, 309, 321, 322). It follows that law in Article 21 will include all post-constitutional statute law including the Act in the present case and by virtue of Article 372 all pre-constitutional statute law including the Indian Penal Code and the Criminal Procedure Code. The expression "procedure established by law" includes substantive as well as procedural law. (See A. K. Gopalan's case (supra) at p. 111 and S. Krishnan & ors. v. The State of Madras([1951] S. C. R. 621 at p. 639.). It means some step or method or manner of procedure leading upto deprivation of personal liberty. A law depriving a person of personal liberty must be a substantive and procedural law authorising such deprivation. It cannot be a bare law authorising deprivation of personal liberty. The makers of the Constitution had the Criminal Procedure Code in mind. The repealed Criminal Procedure Code as well as the present Criminal Procedure Code has substantive as well as procedural provisions. The 13 substantive as well 35 the procedural .....

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..... against the Executive for wrongful detention or conviction or punishment as the case may be. The expression "No person shall be prosecuted for the same offence more than once" in Article 20 would apply only to the Executive The decision in Makhan Singh's case (supra) is that fundamental rights cannot be enforced against the Judiciary in case of illegal orders. The decision in Ram Narayan Singh v. The State of Delhi & Ors.( [1953] S. C. R 652) is no authority for the proposition that fundamental rights can be enforced against the Judiciary. This Court held that the detention of Ram Narayan was illegal because Ram Narayan was being detained without any order of remand by the Magistrate. In Ram Narayan's case (supra) there was no aspect of the bar. under Article 359. It is not correct to say that the suspension of fundamental rights or of their enforcement can increase the power of the Executive. The effect of suspension or enforcement of fundamental rights is that an individual cannot move any court for the enforcement of his fundamental right to personal liberty for the time being;. Reference to Articles 256, 265 and 361 has make by the respondents to show that Article 21 is not t .....

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..... ional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article 359(1) will be an exercise in futility. In Makhan Singh's case (supra) there was not suggestion that apart from Article 21 there was any common law or pre-Constitution right to personal liberty. The theory of eclipse advanced on behalf of the respondents is untenable. Reliance was placed on the decision in Bhikaji Narain Dhakras & Ors. v. The State of Madhya Pradesh & Anr.([1955] 2 S. C. R. 589). The theory of eclipse refers to pre-constitutional laws which were inconsistent with fundamental right. By reason of Article 13 (1) such laws could not become void but became devoid of legal force. Such laws became eclipsed for the time being. The theory of eclipse has no relevance to the suspension of the enforcement of fundamental rights under Article 359 (1) . The constitutional provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 (1) . Article 21 is not a common law right. There was no preexisting common Law remedy to habeas corpus. Further, no common law right which correspond's to a fundamental right can exist as a dist .....

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..... not a law. The order does not real any law either. The suggestion that Article 21 was intended to afford protection to life and personal liberty against violation lay private individuals was rejected in Shamdasani's case (supra) because there cannot be any question of one private individual being authorised by law to deprive another of his property or taking away the life and liberty of any person by procedure established by law. The entire concept in Article 21 is against Executive action. In Vidya Verma's case (supra) this Court said that there is no question of infringement of fundamental right under Article 21 where the detention complained of is by a private person and not by a State or under the authority or orders of a State. The Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure? therefore. cannot be challenged because Articles 21 and 22 cannot be enforced. The suggestion of the respondents that the power of the Executive is widened is equally untenable. The suggestion on behalf of the respondents tha .....

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..... of each society to choose the Government under the which they lie. In the second place come freedom of speech, freedom of assembly and freedom f association. These are not absolute tights, Their exceptions are justified by the necessity if reconciling the claims of different individuals to those rights, The criterion whereby this reconciliation an be effected is the concern of law to ensure that the status and dignity of all individuals is to the greatest possible extent observed. Freedom of speech may be limited by conception as clear present danger", attack, on the free democratic order". The institutions and procedures by which the fundamental regard for the status and dignity of the human person an be effected is that rights and remedies are complimentary to the other, The phrases such as "equality before law" or "equal protection of the laws: are in themselves equivocal. The supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula. Aristotle, pointed out that the rigid certainty of law is not applicable to all circumstances. this plea would be echoed by the modern administrator called .....

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..... n case (supra) and the Meenakshi Mill's case (supra) follow Bharat Singh's case (supra) regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law. The ratio in Bharat Singh's case (supra) is that the Madhya Pradesh Public Security Act was brought into force before the Emergency Article 358 empowers the legislature to make a law violating Article 19. Article 358 does not mean that a pre-emergency law violating Article 19 would have constitutional validity during the period of emergency. The Executive action which was taken during the emergency on the basis of the pre-emergency law did not have the authority of law inasmuch as the Madhya Pradesh Act of 1959 was a void law where it was enacted in violation of Article 19. In Ibrahim's case (supra), is the Sugar Control order 1963 permitted allocation of quotas of sugar. The State Government ordered that the sugar allocated to the two cities of Hyderabad and Secunderabad were entirety to be given to the Co-operative Stores. Under Article 358 the respondents there could not challenge an Executive action which, but for .....

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..... ny suggestion of destruction of rule of law as the respondents con tended because the Presidential order under Article 359 neither nullifies nor suspends the operation of any law. The consequence of the Presidential order is of a higher import than the suspension of any law because the remedy for the enforcement of fundamental rights is barred for the time being because of grave emergency. The respondents contend that if an individual officer acts outside his authority, it will be an illegal act and the High Court under Article 226 can deal with it. Reliance is placed on the English decision in Christie & Anr. v. Leachinsky ([1947] A. C. 573) in support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority. , The decision in Leachinsky's case (supra) is an action for false imprisonment and damages against two persons of Liverpool City Police for wrongfully arresting a person without informing that person of the grounds for arrest. That case has no relevance here. An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to b .....

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..... rported to be made under section 3 of the Act" in section 18 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate, even if the order is made in breach of the section or is mala fide. (See Hari Singh v. The Crown Bhagchand Dagadusu v. Secretary of State for India, Albert West Meads v. The King, Anisminic v. Foreign Compensation etc.(4) and Dakshina Ranjan Ghosh v. Omar Chand Oswal. As long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act. The section applies to any person in respect of whom an order as been made or purported to be made. There is no question of excessive delegation. Section 18 of the Act lays down the law. Section 18 of the Act is only an illustration of an application of the act by the officers authorised by the Act. Section 18 identifies the person to whom it applies and in what cases it applies to such a person. The word "purport" covers acts alleged to be malafide. The decisions to which reference has been made indicate that the acts whatever their effect be are all .....

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..... bts on all aspects of legality which have been put in issue. If the detaining authority for whatever reasons ] fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality of detention the court may direct release of the detenus. The respondents submit that all that they want is that if the detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any "disquieting doubts" the court will dismiss the petitions. If the court has any such doubt the court will call for the return. On a return being made if the court is satisfied that the return is an adequate answer the court will dismiss the petition. If the court wants to look into the grounds the court will ask for the production M the grounds and the court itself will look into the grounds but will not show the grounds to the detenus. In short, the respondents submit that the jurisdiction of the court to entertain the application should not be taken away as a result of the Presidential order. F The appellants submit that if Article 359 is not a bar at the threshold and if the Court can entertain a .....

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..... g to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question. This was the view taken in the Live sidge ([1942 1 A. C. 206 at 221, 253, 254, 266, 267, 279 and 280) case. See also Rogers case [1973] A. C. 388 at 400, 401 and 405. If privilege were to be claimed in each case such a claim would in terms of sections 123 and 162 of the Evidence Act have been invariably upheld. Article 22(G) also contemplates such claims on behalf of the State. That is why instead of leaving it to individual decision in each case or to the discretion of individual detaining authorities to make a claim for privilege, the legislature has enacted section 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification. Section 16A cannot be said to be an amendment to Article 226. The jurisdiction to issue writs is neither abrogated nor abridged. A claim of privilege arises in regard to documents or information where a party to a suit or proceeding is called upon to produce evidence. Section 16A(9) enacts provisions analogous to a conclusive proof of presumption. Such a provision .....

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..... 's case (supra) offended Article 22. (See A. K. Gopalan's case 1950 S. C. R. 88 at 130, 217, 242, 283-84, 332-33). In Damnoo's case (supra) there was no question of privilage. The file was produced but there was no direction of the court to produce the file. Second. There was no aspect of Article 359. Third. In Damnoo's case (supra) the analogy of section 14 of the Preventive Detention Act in Gopalan's case was considered. No provision like section 16A(9) was on the scene. Fourth, The State did not rely on the proviso to section 8 of the relevant Act there to contend that the file could not be produced. Section 16A(9) of the Act contains definite indications of implied exclusion of judicial review on the allegations of malafide. It is not possible for the court to adjudicate effectively on malafides. The reason why section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power. It will be useless to attempt to examine the truth of the fact alleged in the order in a case when the fact relates to the personal belief of the relevant authority formed at least partly on grounds which he is not .....

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..... faith is involved, there are ample indications in the provisions of the Act, viz., section 16A(2), proviso to section 16A(3), section 16A(4), section 16A(5), section 16A(7)(ii) and section 16A(9) of the Act to bar a challenge to the detention on the basis of mala- fides. (See Smith v. East Elloe Rural District Council & Ors.([1956] A. C. 736 at 776) and Ram Manohar Lohia's case (supra) at 716, 732). This Court said that an action to decide the order on the grounds of malafides does not lie because under the provisions no action is maintainable for the purpose. This Court also referred to the decision in the Liversidge case (supra) where the Court held that the jurisdiction of the court was ousted in such way that even questions of bad faith could not be raised. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge. The onus of showing that the detaining authority was not acting in good faith is on the detenu. This burden cannot be discharged because of the difficulty of proving bad faith in the exercise of subjective discretionary power vested in the administration. De Smith in his Judicial review of Administrative Actions 1973 E .....

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..... der or in compliance with the Act or is illegal or malafide. Second. Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential order Third. Section 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention. Fourth. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. The appeals are accepted. The judgments of the High Courts are set aside. KHANNA, J.- Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is" therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which pers .....

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..... stion one such facet has now presented itself to this Constitution Bench The question posed before us is whether in view of the Presidential order dated June 27, 1975 under clause (1) of article 359 of the Constiution, any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as MISA) as amended is maintainable. A consequential question which may be numbered as question No. 2 is, if such a petition is maintainable, what is the scope or extent of judicial scrutiny. The above questions arise in criminal appeals Nos. 279 of 1975" 355 and 356 of 1975, 1845-49 of 1975, 380 of 1975, 1926 of 1975 389 of 1975, 3 of 1976, 41 of 1976 and 46 of 1976. These appeals have been filed against the orders of Madhya Pradesh High Court, Allahabad High Court, Karnataka High Court, Delhi High Court, Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas corpus on account of Presidentia .....

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..... ds 'twelve days', the words 'twenty-two days' shall be substituted. (4) When any order is made or approved by the State Government under this section, the State Government shall within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order." Section 4 and 5 deal respectively with execution of detention orders and the power to regulate place and conditions of detention. According to section 6, detention orders are not to be invalidated or inoperative on the ground that the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the order' or that the place of detention of such person is outside the said limits. Section 8 requires that the Grounds of order of detention should be disclosed to persons affected by the order and he should be granted the earliest opportunity of making a representation against the order. Section 9 deals with the constitution of Advisory Boards. Section 10 makes provision for reference to Advisory Boards. Section 11 prescribes the .....

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..... h 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 rights with respect of 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." On June 20, 1975 the President of India amended the above order by substituting twelve months" for "six months" in the order. On June 25, 1975 the President of India issued another proclamation of emergency and the same reads as under:           "PROCLAMATION OF EMERGENCY In exercise of the powers conferred by clause (1) of article .....

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..... ll, unless such person is sooner related from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have been issued hereinafter in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. (3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied tha .....

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..... detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order;" (ii) section 8 to 12 shall not apply; and (iii) section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under section 12' shall be omitted." Act 39 of 1975 also inserted section 18 with effect from June 25, 1975 and the same reads as under:            "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any." By the Constitution (Thirty eighth Amendment) Act, 1975 clauses (4) and (5) which read as under were added in article 352 of the Constitution :             "(4) The power conferred on the President by this article shall include the power to issue different Proclamation 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 i .....

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..... ing or confirming under subsection (3), or the non-revocation under sub-section (4), of the declaration in respect of him.'; (b) in sub-section (7), in clause (1),-           (1) in the opening portion, for the words 'the following sub-section', the words 'the following' shall be substituted; (ii) in sub-section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order', the words 'report the fact to the Central Government' shall be substituted; (iii)after sub-section (3) aforesaid, the following shall be inserted, namely:- '(4) At any time after the receipt of a report under sub-section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.': (c) after sub-section (7), the following sub-sections shall be inserted, namely:-           '(8) in the case of any person in respect of whom a declaration has been made by a State Govern .....

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..... (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person, may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later." Following sub-section (2A) was also inserted in section 16A of the principal Act:               "(2A) If the State Government makes a declaration under sub-section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be deemed to have approved such detention order and the provisions of sub-section (3) of section 3, in so far as they relate to the approval of the State Government, .....

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..... b-section (3), or the non-revocation under sub-section (4), of the declaration in respect of him.,; (c) in sub-section (7), in clause (1),- (1) in the opening portion, for the words the following sub-section', the words 'the following' shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (ii) in sub-section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order', the words 'report the fact to the Central Government' shall be substituted, E; and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (iii)after sub-section (3) aforesaid, the following shall be inserted. and shall be deemed to have been inserted with effect from the 17th day of October, 1975 namely:-           '(4) At any time after the receipt of a report under sub-section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars as. in the opinion of the State Government, have a bearing on the necessity for .....

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..... principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June, 1975 or in respect of any such order of detention shall, for all purposes, be deemed to be as valid and effective as if the amendments made to the principal Act by sections 2 and 3, and clause (a) of section 4, of this Act had been in force at all material times." During the pendency of these petitions under article 226 of the Constitution of India before the High Courts for issue of writs of habeas corpus, it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27, 1975 under article 359 suspending the right of all persons to move any court for the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution, petitions for issue of writs of habeas corpus were not maintainable. Particular stress was laid upon the fact that the right to move the court for enforcement of the right under article 21 had been suspended and as such no petition for a writ of habeas corpus could be proceeded with. The above mentioned Presidential order was stated to be an absolute bar to the judici .....

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..... 2, the rules framed under the ordinance by the Central Government were published. On November 11, 1962 the Presidential order reproduced above was amended and for the words and figure "article 21", the words and figures "articles 14 and 21" were substituted. The Defence of India ordinance was subsequently replaced by the Defence of India Act and the rules framed under the ordinance were deemed to have been framed under the Act. Perusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14, 21 and 22. The suspension was, however, conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder. It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence of India Act or any rule or order made thereunder, the same could not enjoy the protection of the Presidential order under article 359. Another effect of the Presidential order was that as long as the proclamation of emergency was in force, the validity of the provisions .....

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..... een 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 provision of the Act have been contravened. Such a plea is outside Art. 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention i has been ordered malafide. It is hardly necessary to ; emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can ; always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be enough; the detenu will have to prove the malafides. But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359(1) and the Presidential order. That is another kind of plea which is outside the purview of Art. 359(1)." It was further observed :            "It is only in regard to that cla .....

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..... approach the High Court under Art. 226 of the Constitution." Similar view was expressed in the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors.( [1966] 1 S. C. R. 709) Sarkar J. (as be then was) in that case observed that where a person was detained in violation OF the mandatory provisions of the Defence of India Act, his right to move the court was not suspended. Hidayatullah and Bachawat JJ. referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defence of India Act or the rules, he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it. The Presidential order was held to have not intended to condone an illegitimate enforcement of the Defence of India Act. Raghubar Dayal J. held that the Court could go into the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules. Mudholkar J. Observed that if a detenu contends that the order. though it purports to be under rule 30(1) of the Defence of India Rules, was not competently made, this Court .....

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..... raseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June 27, 1975 a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders. Question then arises as to what is the effect of the suspension of the right of a person to move any court for the enforcement of rights conferred by articles 14, 21 and 22 of the Constitution. One obvious result of the above is that no o .....

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..... o have been used for the first time. Neither of the expressions "due process of law" or "law of the land" was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made. The expression "due process of law" came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall be deprived of life, liberty or property without due process of law." A Similar expression was used in the Fourteenth Amendment in 1868. It has been said that few phrases in the law are so elusive of exact apprehension as "due process of law." The United States Supreme Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in th .....

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..... s also now becoming a thing of the past and the rule is being restricted more and more to its original procedural aspect (see observations of Mukherjea J. in the case of A. K. Gopalan, (supra). At the time the Constitution was being drafted, the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional experts some of whom expressed the opinion that power of review implied in due process clause was not only undemocratic because it gave the power of vetoing legislation to the judges, but also threw an unfair burden on the judiciary. This view was communicated by Mr. Rau to the Drafting Committee which thereupon substituted the words "except according to procedure established by law" for words "due process, of law." In dropping the words "due process of law," the framers of our Constitution prevented the introduction of elements of vagueness, uncertainty and changeability which had grown round the due process doctrine in the United States. The words ' except according to procedure established by law" were taken from article 31 of the Japanese Constitution, according to which "no person shall be deprived of life or liberty nor shall any criminal liability be imposed .....

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..... rs inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process of law. The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity of life and liberty. They have also given expression in varying words to the principle that no one shall be deprived of his life or liberty without the authority of law. The International Commission of Jurists, which is affiliated to Unesco, has been attempting with considerable success to give material content to "the Rule of Law," an expression used in the Universal Declaration of Human Rights. One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers. "Respect for the supreme value of human personality" was stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by o. Hood Phillips, 3rd Ed. Freedom under law, it may be added, is not absolute freedom. It has its own limitations in its own interest, and can properly be describe .....

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..... vert and disguised for no government in a civilized country is prepared to accept the ignominy of governing without the rule of law. As observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed., the rule of law has come to be regarded as the mark of a free society. Admittedly its content is different in different countries, nor is it to be secured exclusively through the ordinary courts. But everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law. Sanctity of life and liberty was not something new when the Consitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not th .....

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..... lon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as developed by Dicey. Administrators deal with the implementation of highly technical and complex matters involving the immediate interests of many citizens, To accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators. It is natural that they should desire to have the conflicts which arise as the result of the exercise of their discretion adjudicated by tribunals composed of experts acquainted with the details of the matters at issue, rather than by judges trained only in the law. Hence their resistance to judicial review of administrative 'findings of fact' as opposed to 'findings of law'. The very things which a court of law prizes-rules of evidence, common law procedures, even due process-frequently appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is attempting to effectuate. Often, secretly if not openly, the administrator considers his policy to be the incarnation of the best interests of the p .....

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..... show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21, a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law. In fact, any suggestion to such a claim was unequivocally repelled. In the case of James Sommersett([1772], 16 Cr. Pract. 289) Lord Mansfield dealt with a case of a negro named Sommersett, who was being taken in a ship to Jamaica for sale in a slave market. When the ships anchored at London port, a habeas corpus petition was presented by some Englishmen who were moved by the yelling and cries of Sommersett. In opposition to the petition the slave trader took the plea that there was no law which prohibited slavery. Lord d Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom:           "It is so odious that nothing can be suffered to support it but positive law: whatever inconveniences, therefore, may follow from this decision, I cannot say this case is all .....

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..... . Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359. I am also unable to agree that in view of the Presidential order in the matter of sanctity of life and liberty, things would be worse off compared to the state of .....

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..... t is for that reason that courts have insisted upon the authority of law for a public servant to take away someone's life or liberty. An executioner carrying out the sentence of death imposed by the court would not commit the offence of homicide, because he is executing the condemned man in obedience to a warrant issued by a court having jurisdiction in accordance with the law of the land. Likewise, a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the sanctity of life and liberty, it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law. The fact that penal laws of India answer to the description of the word "law", which has been used in article 21 would not militate against the inference that article 21 is not the sole repository of the right to life or personal liberty and that the principle that no one shall be deprived of his life or p .....

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..... accede to the contention that because of article 21 of the Constitution, the law which was already in force that no one could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction interpretation warrants such an inference. Section 491 of the Code of Criminal Procedure continued to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226. No submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution. Indeed, in the case of Malkha Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 of the Code .....

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..... tain a person on any ground whatsoever. l agree with the learned Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27, 1975, in that event we have to accept it in its entirety and go the whole hog; there is no half way house in between. So let us examine the consequences of the acceptance of the above argument. This would mean that if any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency. This would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law, if any official for reasons which have nothing to do with the security of State or maintenance of public order, but because of personal animosity, arrests and puts behind the bar any person or a whole group or family of persons, the aggrieved person or persons would not be able to seek any redress from a court of law. The same would be the position in case of threat of deprivation or even actual de .....

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..... ffect to municipal law. If, however, two constructions of the municipal law are possible, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the inter national law or treaty obligations. Every statute, according to this rule, is interpreted, so far as its language permits, so as not to be inconsistent with the committee of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language. But if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results (see page 183 of Maxwell on the Interpretation of Statutes, Twelfth Edition.) As observed by Oippenheim's International law, although municipal courts must apply Municipal Law even if it conflicts with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that an enlightened State would intentionally enact a ru .....

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..... the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. ARTICLE 9 No one shall be subjected to arbitrary arrest, detention or exile.' While dealing with the Presidential order under article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also preeminently reasonable. The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. It has been argued that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law. This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of la .....

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..... ivate persons and governmental officials alike, must be equally responsible before the law; and (3) effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State" (see Law in a Changing Society by Friedmann, 2nd Ed., page 501). One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law. This principle has now been well settled in a chain of authorities of this Court. In the case of Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab ([1955] 2 S. C. R. 225) Mukherjea C.J. speaking for the Constitution Bench of this Court observed:          "Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law, in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed." .....

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..... hich if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial each organ having some check direct or indirect on the other: and (3) the rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his Introduction to the study of the Law of the Constitution', 10th Edn., at P. 202 the expression 'rule of law' has three meanings, or may be regarded from three different points of view. 'It means in the first place, the absolute supremacy or predominance of regular law as opposed to the HE influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionay au .....

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..... lamation of emergency is in operation when it is taken. Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control order, it was not protected under Art. 358 of the Constitution. Nor had it the protection under Art. 259." In Bennett Coleman & Co. & ors. v Union of India([1973] 2 S. C. R. 757) Ray J. (as he then was) speaking for the majority of the Constitution Bench relied upon Thakur Bharat Singh and M/s Ibrahim & Co. cases (supra) and observed:          "Executive action which is unconstitutional is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per-emergency law which was invalid when enacted." In Shree Meenakshi Mills Ltd. v. Union of India ([1974] 2 S. C. R. 398) this Court dealt with petitions challenging the validity of the fixation of pr .....

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..... etion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-'Law of the Constitution' Tenth Edn., Introduction ex). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlick (342 U. S. 98), 'when it has freed man from the unlimited discretion of some ruler .... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes ((1770) 4 Burr. 2528 at 2539), 'means sound discretion guided by law. It must be governed by rule, not by humour: It must not be arbitrary, value and fanciful.' " In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Narain ([19761 2 .....

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..... t as soon as the order aforesaid ceases to operate, except as respects thing done or omitted to be done before the law so ceases to have effect. Clause (1A) thus protects laws and executive actions from any attack on validity on the score of being violative of the fundamental rights mentioned in the Presidential order in the same way as article 358 protects the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency. If the existence of article 358 did not have the effect of dispensing with the necessity for an executive action operating to the prejudice of tile right of a citizen of the authority of law, the same must necessarily be the position after the insertion of clause (1A) in article 359. It is significant that the language of clause (1A) of article 359 in material respect is substantially the same as that of article 358. The language of clause (1A) of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action is the State would but for the provisions contained in Part III of the Constitution be competent to make or take. The word "competent" has a .....

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..... is as Lo what is the effect of the suspension of the right to move a court for. the enforcement of the right contained in article 21. The effect. it may possibly be argued, is that consequent upon such suspension if a person is deprived of his life or personal liberty under a law not satisfying the second requirement indicated above, he cannot seek judicial redress on that score. Would it, however, follow from the suspension of such right that no judicial remedy would be available if a personal is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty. The answer to this question in my opinion, should plainly be in the negative. The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The presupposition of the existence of substantive power to deprive a .....

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..... n the order. On the plain language of article 359(1), the President has no power to suspend the right to move any court for the enforcement of rights which are not fundamental rights conferred by Part III of the Constitution. Rights created by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of such statutory rights cannot be suspended under article 359(1). Likewise, article 359(1) does not deal with obligations and liabilities which flow from statutory provisions, and it would follow that an order under article 359(1) cannot affect those obligations and liabilities arising out of statutory provisions. Nor can a Presidential order under article 359(1) nullify or suspend the operation of any statute enacted by a competent legislature. Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359 ( 1 ) and the Presidential order made hereunder. The Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article 21 were repealed, a detenu would not be barred from obtaining .....

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..... them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be abjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufferance of the official concerned. It is the presence of legal sanctions which distinguishes positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non-compliance with statutory provision entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions, and it would not be permissible to invoke some indefinite general powers of the executive. As observed by Lord Atkinson in the case o .....

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..... 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." Similar view was expressed in the case of Durgadas Shirali v. Union of India & ors ([1966] 2 S. C. R. 573) In G. Sadanandan v. State of Kerala & Anr.( [1966] 3 S. C. R. 590) the Constitution Bench of this Court speaking through Gajendragadkar CJ. struck down a detention order on the ground that it was mala fide. Our founding fathers made article 226 which confers power on the High Court to i .....

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..... rkenhead in the case of Secretary of State for Home Affairs v. O'Brien ([1923] A. C. 603 (609)):         "It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirtythird year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege." The existence of the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristic of democratic states under the rule of law. The significance of the writ for the moral health of the society has been acknowledged by all jurists. Hallam described it as the "principal bulwark of English liberty". The uniqueness of habeas corpus in the procedural armoury of our law cannot be too often emphasised. It differs from all others remedies in that it is available to bring into question the legality of a person's restraint and to require justification for such detention. .....

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..... xecutive, is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution. Similarly if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the State acting within its own limitations and obeying the supremacy of the other organs of the State. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself." It was further observed by him:        "No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority,, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the President shall follow .....

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..... e with the legislative intent should be performed by the courts. The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic , . values affecting life, liberty and the rule of law. More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of are order. What is at stake is the rule of law. If it could be the boast of a great English judge* that the air of England is too pure for a slave to breathe, cannot we also say with ' I justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law. even if it chooses to act contrary to law or in an arbitrary and capricious manner. The question is not whether there-can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment even on an extensive scale, in the f .....

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..... ourts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject. Rather the contrary." In dealing with an application for a writ of habeas corpus, the court only ensure that the detaining authorities act in accordance with the law of preventive detention. The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless. The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared to the possibility of an innocent person being convicted at trial in a court of law. It would be apposite in this context to refer to the observations of Professor Alan M. Dershowitz: The available evidence suggest that our system of determining past guilt results in erroneous conviction of relatively few innocent people. We really do seem to practice what we preach about preferring .....

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..... tion of individual liberty is preserved. Members hold strongly that it is a fundamental principle that the individual should never be deprived of the means of testing the legality of his arrest or. custody by recourse to judicial process even in times of emergency. If that principle is departed from, the liberty of the individual is immediately put in great peril". l am, therefore, of the view that there is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter, that the Presidential order of June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order. We may now deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA. For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned. According to section 3(1) of MISA, the authorities specified in the sub-section may if satisfied with respect to any person .....

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..... he executive authority which is against the legislative policy underlying the statute. A law of preventive detention is not punitive but precautionary. and preventive. The power of detention under such law is base(l on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. Such a power is exercised because of apprehension of future prejudicial activity on the part of the person ordered to be detained judged in the light of his past conduct and propensity. The order for preventive detention in such cases postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise. The consequences of waiting and declining to take action against that person till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a heavy price for such abstention. The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and .....

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..... ority concerned before deciding to detain a person should apply its mind to the facts before lit in a fair and reasonable manner. If the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it, the legitimate inference would be that the authority concerned did not apply its mind to the relevant facts and did not honestly arrive at the conclusion. To use the words of Lord Halsbury in Shrape v. Wakefield ([1891] A. C. 172-at p. 179.):         " ... when it is said that something is to be done with in the discretion of the authorities .. that something is to be done according to the rules of reason and justice, not according to private opinion .... according to law and not humour. It is to be, not arbitrary, vague" fanciful, but legal and regular." Likewise, if there were no grounds, as observed by Lord Morton in Ross v. Papadopollos ([1958] 2 All. E. R. 23 (on p. 33), or which the authority concerned could he satisfied, the court might infer either that the authority did not honestly form that view or that in forming it, the authority could not have applied its mind to the relevant facts. The courts would also in .....

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..... to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activit .....

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..... tion. Detention without trial results in serious inroads into personal liberty of an individual. In such cases it is essential to ensure that there is no deviation from the procedural safeguards provided by the statute. In, the matter of even a criminal trial? it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice. The need for strict adherence to strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a person even though he is not found guilty of the commission of an offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention. The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure. I am, therefore, of the view that it would be wholly inappropriate to countenance any laxity in the matter of strick compliance with procedural requirements prescribed for preventive detention. The ob .....

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..... casual approach adopted by the appropriate authority, the appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its mala fides, are not well-founded. The failure of respondent No. 1 to place any such material before us in the pre sent proceedings leaves us no alternative but to accept the plea made by the petitioner that the order of detention against him on the 20th October, 1965.1 and more particularly, his continued detention after the 20th October, 1965, ale totally invalid and unjustified." The initial burden is on the detenu to show that at his detention is mala fide or not in accordance with law. If the detenu makes out a prima facie case, the burden shifts on the State and it becomes essential for the State to file a good return. Once substantial disquieting doubts are raised by the detenu in the mind of the court regarding the validity of his detention, it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it abou .....

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..... for deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that the detention of the person ordered to be detained is necessary for dealing effectively with the emergency. Sub-section (4) provides for reconsideration at intervals not exceeding four months of the necessity of detention of a person in respect of whom a declaration is made under sub-section (2) or (3). According to sub-section (5), in making any review, consideration or reconsideration under sub-sections (2), (3) or (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub-section (2)" or the making or confirming under sub-section (3), or the non-revocation under sub-section (4), of the declaration in respect of him. Sub-sections (6) and (7) provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub-secti .....

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..... question of maintainability of petitions for writs of habeas corpus, only two, namely, Rajsthan High Court and Nagpur Bench of Bombay High Court have gone into this aspect, while the other seven have not expressed and view in the matter. Both Rajasthan High Court and Nagpur Bench of the Bombay High Court have upheld the validity of section 16A(9). While Rajasthan High Court has not read down the provisions of section 16A(9) the Nagpur Bench of the Bombay High Court has expressed the view that it would be permissible for the High Court to can for and peruse the grounds in certain circumstances. The Nagpur Bench, it may be pointed out, dealt with the provisions of section 16 A(9), as they then existed before its amendment by Act 14 of 1976. Before us arguments have been addressed on behalf of the respondents challenging the validity of section 16,A(9) on the ground that it is violative of article 226 inasmuch as it prevents the High Court from effectively exercising the jurisdiction under that article to issue was of habeas corpus. In my opinion, it would not be permissible in these appeals against orders disposing of preliminary objection to decide the question of validity of secti .....

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..... a of unfavourable decision against an appellant in the absence of an appeal by the respondent. Nor does that decision justify adoption of a course which might conceivably lead to such result. Likewise, no assistance can be derived from clause (3) of article 132 of the Constitution because of the fact that the appeal against the order of the Rajsthan High Court has been filed in pursuance of a certificate of fitness granted under that article. The only point on which the Rajasthan High Court has decided against the appellant is regarding the maintainability of the petition under article 226. The effect of article 132(3) would only be that it would be permissible to assail the order of the High Court on the question of Maintability of the petition under article 226 not only on the ground relating to the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds. It is, however, not the effect of article 132(3) that if the High Court in the impugned order decides two distinct preliminary issues, one in favour of one party and the other in favour of the opposite party, this Court in an .....

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..... in such consequence. The construction which does not result in such consequences is not only possible, it is also prominently reasonable. (5) In a long chain of authorities this Court has laid stress upon the prevalence of the rule of law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law. There is no valid reason to depart from the rule laid down in those decisions some of which were given by Benches larger than the Bench dealing with these appeals. (6) According to article 21, no one can be deprived or his life or personal liberty except in accordance with procedure established by law. Procedure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power. Then article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as wen as the procedure for the exercise of such power. When right to move any Court for enforcement of right guaranteed by article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure .....

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..... in any of the petitions pending in the High Courts. The whole matter would then be at large before this Court and it would not be inhabited by procedural and other constraints. It would not be permissible or proper for this Court to short circuit the whole thing and decide the matter by by-passing the High Courts who are seized of the matter. Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethern has not stood in the way of my ex pressing the same. I am aware of the desirability of unanimity, if possible. Unanimity obtained without sacrifice of conviction comments the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes (Prophets with Honor by Alan Barth, 1974 Ed. P. 3-6) judges are not there simply to decide cases, but t to decide them as they think they should be decided, and while if may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unani .....

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..... completely outside the Act. Detenues allege not merely infraction of some provision of the Act, under which a detention is ordered, but, more often, that the detention is for extraneous reasons falling either entirely or partially outside the Act. "Malafides" is almost invariably alleged presumably on the assumption that almost everything the detenue considers either wrong or erroneous or improper must be "mala fide". Arguments addressed to us on behalf of the detenues have raised a host of hypothetical questions, such as: What would be the position if the order of detention, on the face of it, either fans outside the provisions of the Act or is made mala fide ? Would a detention order, by any Government servant without even an ostensible or purported statutory authority to support it, not stand on the same footing as a detention by a private person? Would remedy against detention which may be patently illegal. without need for any real investigation into facts at an also be barred ? Could remedy by way of a writ of Habeas Corpus against any illegal detention by anyone in this country, under any circumstances, be held to be suspended during the Emergency ? The next steps in the a .....

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..... tions indicated above on the assumption that the provisions of law contained in the Act have been infringed, in some way, by the detaining authorities in a particular case. They want us to indicate degrees of transgression of the provisions of the Act, if any, which can justify interference by the High Courts in Habeas Corpus proceedings. As the facts of no particular case are before s, we can only answer the questions before us with the help, where necessary, of appropriate hypothetical examples. The learned Attorney General has, very frankly and honestly, submitted that there was no need to bestow upon actions of the detaining authorities the protection given to them only for the duration of the Emergency proclaimed under Article 352(1 ) of the Constitution, if the President did not really intend to confer certain immunities from judicial scrutiny and interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over-riding interests of national security and independence may not be jeopardized. The Attorney General's submission is that the risks of misuse of powers by the detaining officers and authorities, wh .....

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..... on of thought. Even in England, the reputed home of the Rule of Law, the rather loose, general, and in exact meaning given to the term by Dicey to describe and glorify certain assumedly special characteristics of the English Constitution, have given place to more realistic, critical, and scientific views of the "Rule of Law" and what Dicey meant: by it. Sir Ivor Jennings, in "The Law and the Constitution" (3rd Edn. p. 296) pointed out: .             "Dicey honestly tried (in The Law of the Constitution, not in his polemical works) to analyse, but, like most, he saw the Constitution through his own spectacles, and his vision was not exact. The growth of the new functions of the State has made much of his analysis irrelevant. Moreover, the argument from history or, what is the same thing, from the Constitution must be used with discretion. To say that a new policy is 'unconstitutional' is merely to say that it is contrary to tradition, and it must always be considered whether the tradition is relevant to new circumstances. Even if the rule of law as Dicey expounded it had been exact, it would not be a sufficient argument to say .....

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..... deny the validity of its basic assumptions. The first of these assumptions or meanings was that any depravation of personal liberty or property must not only be for a "distinct breach of law" but "established in the ordinary legal manner before the ordinary Courts of the land". He contrasted this "with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint". He concluded, from what he regarded as a basic Feature of the British Constitution, that an modes of dispensing justice, through specialised administrative authorities and bodies, must necessarily be autocratic and unfair. He compared the British system with the one under which Voltaire, in 1717, was "sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiments of which he did not agree". The second assumption of Dicey's Rule of law was. "Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". He overlooked the not infrequent injustice caused in England of his time, due to want of adequate remedies ag .....

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..... Dicey thought that the difference between the unwritten British Constitution and a written Constituion, such as that of Belgium, was not merely a formal one, but revealed entirely differing approaches to basic freedoms. He observed            "The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a through revolution in the institutions and manners of the nation." After making the distinction mentioned above, Dicey deals with "the so-called suspension of the Habeas Corpus Act". He said that it bears "a certain similarity to what is caned in foreign countries 'suspending the constitutional guarantees' ".. He euphemistically, explained:             "But, after an, a statute suspending the Habeas Corpus Act falls very far short .....

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..... . Some are traditional, and so are 'determined' by the common law. The powers of administrative authorities in respect of 'fundamental liberties' are mainly contained in statutes. But even if they were not, I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source. The powers of the Crown and of other administrative authorities are limited by the rights of individuals; or the rights of individuals are limited by the powers of the administration. Both statements are correct; and both powers and rights come from the law-from the rules". Thus, Jennings pointed out that what was material was the existence of rules, as a part of Constitutional law, and not their sources or forms. He tried to show that the basic rule being the supremacy of Statutory law that was "The Constitution" in Britain. No other rule could compete with it or stand in its way or be a substitute for it. Dicey, on the other hand, believed that the difference in sources and forms of rules made a great difference in approach and outlook. But, Dicey also treated the judge-made Rule of Law and the rights "guaranteed" by a written constitution as alte .....

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..... As one period has succeeded another, the Constitution has become larger and larger." In A. K. Gopalan v. The State of Madras,( [1950] S. C. R. 88 @ p. 109) the earliest case in which a comprehensive discussion of fundamental guaranteed freedoms in our Constitution took place, Kania, C. J., after referring to observations of Munro, of James Russen Lowen, of Winis, and of Cooley, on the American Constitution, noted about the nature of our Constitution (at p. 109):         "The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other". The position in this country is clearly one in which the fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of an other laws. It seeks to deter mine. the spheres of executive and legislative .....

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..... art's desire"'. I think we must make it clear that the spirit of law or the Rule of Law, which we recognise, cannot, however ominously around like some disembodied ghost serving as a substitute for the living Constitution we actually have. It has to be found always within and operating in harmony with and never outside or in contact with what our Constitution enjoins. An that we can do is to faithfully explain what the Constitution and its spirit mean. We cannot alter or twist these. The distinction made above between law as it exists and as it has to be recognised and enforced by the State's judicial organs, and "the law", if we may can it that at an, which could only constitute some rules of ethics but could not be enforced at an, whatever may be its moral worth, was thus stated by John Codman Hurd in his "Law of Freedom and Bondage in the United States" (Negro Universities Press New York (Vol. I, at p. 3):           "Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced in or by the win of society or the state. The Science of what rule ought to be made operative .....

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..... re recognition or declaration by Courts, either as a right or as a fundamental right, could not possibly help a petitioner to secure his personal liberty. Article 226 of the Constitution is not meant for futile and unenforceable declarations of right. The whole purpose of a writ of Habeas Corpus is to enforce a right to personal freedom after the declaration of a detention as illegal when it is so found upon investigation. It may be that many moral and natural obligations exist outside the Constitution and even outside any positive lawthis is not denied by the learned Attorney General at an but, their existence is not really relevant for purposes of petitions for writs of Habeas Corpus which lie only to enforce Legally enforceable rights. Neither the existence nor the possibilities of denials of any rights by the detaining officers of the State, due to frailities of human nature and errors of judgment, are denied by the Attorney General. ALL that is denied is the correctness of the assertion that they are enforceable, during the period of Emergency, through Courts, if they fan within the purview of rights whose enforcement is suspended. The result of the few very general observati .....

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..... procedure. If the enforcement of a right to be free resulting derivatively from both the Constitutional and statutory provisions, based on an infraction of the procedure, which is statutory in cases of preventive detention, is suspended, it seems to me to be impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would, in any opinion, introduced a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential orders of 1975. If the claim to assert the right is one based on violation Of procedure, the degree of violation may affect the question whether the right to be free is established at all, but, it should not, logically speaking, affect the result where the enforcement of the right, even in a case in which it has become apparent, is suspended. The question, however, which has been most vehemently argued is: Does Article 21 exhaust every kind of protection given to rights to personal freedom ? Another way in which this question was put is Article 21 of the Consti .....

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..... s to me to be that Courts should not undertake inquiries into the violations of the alleged right. If the fundamental rights in Part III of the Constitution are not suspended, as they obviously are not, but only their enforcement can be and is suspended what is really affected is the power conferred on Courts by Articles 32 and 226 of the Constitution. The power of the Courts is the direct and effective protection of the rights sought to be secured indirectly by Article 21, and perhaps less indirectly, by some other articles and laws. Indeed, it is the basic protection because other protections operate through it and depend on it. If this is curtailed temporarily, the other affected protections become automatically inoperative or ineffective so far as Courts are concerned. It is no answer to say that the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359 which is as much a part of the constitution as Article 226. Both articles were there from the commencement of the Constitution. I do not see how it can be reasonably urged that our Constitution-makers did not visualise and intend that the Presidential order under Article 359 must, for .....

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..... s, if they exist at and either by this Court or by the High Courts. So long as the powers of Government are exercised by the chosen representatives of the people, their exercise is presumed to be of the people and for the people. It has to be borne in mind that the validity of the declaration of Emergency under Article 352 has neither been nor can it be constitutionally challenged in view of Article 352(5) of the Constitution. And, the validity of Presidential orders of 1975 under Article 359 has not been questioned. So far, I have only indicated the nature of the problems before us and' my general approach to them. Before specifically answering questions, stated at the outset, I win deal, as briefly as possible, Under the following Six main heads, with such of the very large number of points raised and authorities cited before us as appear to me to be really necessary for answering the questions caning for our decision: (A) "Rights conferred by Part III" of our Constitution from the point of view of Personal Freedom. (B) Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution. (C) The objects of the Maintenance of Internal Se .....

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..... ensuring the fulness of lives of citizens. The whole object of guaranteed fundamental rights is to make those basic aspects of human freedom, embodied in fundamental rights, more secure than others not so selected. In thus recognising and declaring certain basic aspects of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachments upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20) organs of the State. The encroachments must remain within permissible limits and must take place only in prescribed modes. The intention could never be to preserve something concurrently in the field of Natural Law or Common Law. It was to exclude an other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there. I have already referred to Dicey's attempt to show that one of the meanings of the Rule of Law in England was that the law made by the ordinary Courts served purposes sought to be achieved in other countries by means of written Constitutions. This meant that one of the two systems governs the whole field of fundament .....

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..... ecome unreason able, and, therefore, void unless rules of natural justice were impliedly annexed to them. And, the wen known method of construction is: ut res magis valeat guam pereat"-to prefer the construction which upholds rather than the one which invalidates. Thus, rules of natural justice, even when they are read into statutory provisions, have no independent existence. They are annexed to statutory duties or fundamental rights so long as they are not expressly excluded. Their express exclusion by statute may, when the enforcement of fundamental rights. It is not suspended, affect the validity of a statute. But, that is so because of the requirements of Articles 14 and 19 of the Constitution and not because they are outside the Constitution altogether. It is also very difficult for me to understand what is meant by such "Common Law" rights as could co-exist and compete with constitutional provisions or take their place when the constitutional provisions become unenforceable or temporarily inoperative. The whole concept of such alleged Common Law is based on an utter misconception of what "Common Law" means. The origin of Common Law in England is to be found in the work done .....

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..... Coke entered politics and became a Member of the House of Commons in Liskeard. He led a group which resisted Royal claims. He was the principal advocate of the Petition of Rights which Parliament compelled a reluctant King of England to accept in 1628. Courts of justice, unable to withstand Royal onslaughts on their authority, joined hands with Parliament and laid down some of the rules which, according to Dicey, gave the Rule of Law to England. Thus, the judge-made fundamental rights, which Parliament would not disturb, out of innate respect for them, existed, legally speaking, because Parliament, representing the people, wanted them. They could not compete with or obstruct the legal authority of Parliament. Coke's doctrine, however, found expression in a constitution which enabled judges to test the validity of even legislation P' with reference to fundamental rights. This is also one of the primary functions of Chapter III of our own Constitution. Another function of provisions of this chapter is to test the validity of the State's executive action. So far as Article 21 of the Constitution is concerned, it is abundantly clear that it protects the lives and liberties of citize .....

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..... se at a time when the Presidential order of 27th June 1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty. Therefore, the question which arises here is whether "Jus" held by this Court. in Gopalan's case, to have been deliberately excluded from the purview of procedure established by law", can be introduced by Courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other Part of the Constitution. I am quite unable to accede to the suggestion that this could be done. We have been referred to the following passage in R. C. Cooper v, Union of India([1970] 3 S. C. R. 530 @ 578) to substantiate the submission that the decision of this Court in Gopalan's case (supra), on the question mentioned above, no longer holds the field:          "We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything the Constitution which justifies this apparently inconsistent development of the law. In our judgment, the assumption in A.K. Gopalan's case that certain articles in the Constitution exclusively deal with sp .....

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..... C. R. 1 @ 918) when he submitted that, as the majority view there was not that natural rights do not exist, these rights could be enforced in place of the suspended guaranteed fundamental rights. One learned Judge after another in that case emphatically rejected the submission that any theory of natural rights could impliedly limit powers of Constitutional amendment contained in Article 368 of the Constitution. Tn doing so, none or us held that any natural rights could impliedly become legally enforceable rights. G Dwivedi, J., in Kesavananda Bharti's case (supra) said about what could be characterised as a far more "unruly horse" than public policy (at p. 918):         "Natural law has been a sort of religion with many political and constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there: 'State of Nature', 'Nature of Man', 'Reason,' 'Cod', 'Equality', 'Liberty', 'Property', 'Laissez Faire', 'Sovereignty', 'Democracy', 'Civilised Decency', 'Fundamental Conceptions of Justice' and even 'War'. `The religion of Natural Law has its illustrious Pr .....

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..... ing's Conscience", who used to be approached when plain demands of justice failed to be met or caught in the meshes of Common Law, or, were actually defeated by some statute law which was being misused. The two streams, one of Common Law and an other of Equity, were "mixed" or "fused" by statute as a result of the Judicature Acts in England at the end of the last century in the sense that they became parts of one body of law administered by the same Courts, although they are still classified separately due to their separate origins. In Stroud's Judicial Dictionary, we find (See: Vol. I, 4th Edn. p. 517): "The common law of England is that body of law which has been judicially evolved from the general custom of the realm". Here, all that I wish to indicate is that neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as .....

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..... bodied in Part III of the Constitution and they may be classified thus: (1) right to equality (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution. "Fundamental rights' are the modern name for what have been traditionally known as "natural rights". As one author puts: "they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral". They are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights". I do not know of any statement by this Court of the relation between natural rights and fundamental constitutional rights which conflicts with what is stated above. Hidayatullah, J., in .....

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..... ype in the Fifth and Fourteenth Amendments of the Constitution of the United States, presents an example of The fusion of procedural and substantive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. 'Process' or 'procedure' in this context connotes both the act and the manner of' proceeding to take away a man's life or personal liberty. And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation". Mahajan, J., also observed at pages 229-230:           "Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring autho .....

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..... It will thus be seen that not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal Freedom has been held, by implication, to be covered by Article 21 of the Constitution. In Kharak Singh v. the State of U.P. & Ors([1964] 1 S. C. R. 332) he wide import of personal liberty, guaranteed by Article 21, was considered. By a majority of 4 against 2 learned Judges of this Court, it was held that the term "personal liberty", as used 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 from surveillance, from physical torture, and from all kinds of harassment of the person which may interfere with his liberty. Thus, even if Article 21 is not the sole repository of all personal freedom, it will be clear, from a reading of Gopalan's case (supra) and Kharak Singh's case (Supra), that all aspects of freedom of person are meant to be covered by Articles 19 and 21 and 22 of the Constitution. If the enforcement of these rights by Courts is suspend .....

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..... hrough the Courts.         Sixthly, if the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them.           (B) Power to issue writs of Habeas Corpus and other powers of High Courts under Article 226 of the Constitution Reliance has been placed on behalf of the detenus on the following statement of the law found in Halsbury's Laws of England (Vol. 11, p. 27, paragraph 15), where dealing with the jurisdiction to issue such writs in England it is said:           "The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute. At common law the jurisdiction to award the writ was exercised by the Court of Queen's Bench, chancery and Common Pleas, and, in a case of privilege, by the Court of Exchequer". It is, therefore, submitted that the High Courts as well as thi .....

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..... beas Cor pus to enforce a light to personal freedom against executive authorities during the Emergency, the original nature of this writ issuing power comparable to a "prerogative" power, cannot help the detenu. Secondly, as I have already indicated, whatever could be formerly even said to be governed by a Common Law prerogative power becomes merged in the Constitution as soon as the Constitution makes it over and regulates that subject. This is a well recognised principle or law. I will only cite Attorney-General v. De Keyser's Royal Hotel Limited ([1920] A. C. 508 @ 526). Where Lord Dunedin, in answer to a claim of the Crown based on prerogative, said (at p. 526): None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls unanswerable. He says: "What use could there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative ? ". Thirdly, if there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to .....

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..... Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a "jurisdiction of suspicion." See: Khudiram Das v. State of West Bengal., ([1975] 2 S. C. R. p. 832 @ p. 842) State of Madras v. V. G. Row; (A. I. R. 1952 S. C. 197 @ 200) R. v. Halliday ([1917] A. C. 260 @ 275). It enables executive authorities to proceed on bare suspicion which has to give rise to a "satisfaction", as the condition precedent to passing a valid detention order, laid down as follows in Section 3 of the Act:          "3 (1) (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to- (1) the defence of India, the relations of India with foreign powers, or the security of India, or           &nb .....

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..... nated by technological revolutions as well as recurring economic, social, and political crises, with resulting obliterations of traditional values, that masses of people suffer from psychological disturbances due to inability to adjust themselves to these changes and crises. An example of such maladjustment is provided by what happened to a very great and gifted nation within having memory. The great destruction, the inhuman butchery, and the acute suffering and misery which many very civilised parts of the world had to pass through, because some psychologically disturbed people led by Adolf Hitler, were not prevented in time from misleading and misguiding the German nation, is still fresh in our minds. Indeed the whole world suffered, and felt the effects of the unchecked aberrant Nazi movement in Germany and the havoc it unleashed when it acquired a hold over the minds and feelings of the German people with all the vast powers of modern science at their disposal. With such recent examples before them, it was not surprising that our constitution makers, quite far sightedly, provided not only for preventive detention in our Constitution but also introduced Emergency provisions of a .....

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..... held to be enough to invalidate the detention. Thus, grounds supplied always operated as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in. The reasonableness of the detention became the justiciable issue really decided. With great respect, I doubt whether this could be said to be the object of preventive detention provisions authorised by the Constitution and embodied in the Act. In any case, it was the satisfaction of the Court by an application of a kind of objective test more stringently than the principle of criminal procedure, that a defective charge could be amended and would not vitiate a trial without proof of incurable prejudice to the accused, which became, for all practical purposes, the test of the correctness of detention orders. I have ventured to indicate the background which seems to me to have probably necessitated certain amendments in the Act in addition to the reasons which led to the proclamation of Emergency, the effects of which are considered a little later below. We are not concerned here with the wisdom of the policy underlying t .....

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..... hich received the Presidential assent on 25th January 1976, added Section 16A(9) which runs as follows:         "16A(9) Notwithstanding anything contained in any other law or any rule having the force of law,- (a) the Grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub-section (2) or sub-section (3) and any information or materials on which such grounds or a declaration under sub-section (2) or declaration or confirmation under sub-section (3) or the non- revocation under sub-section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, on one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; (b) No person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in cl .....

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..... e amendment, it could not be said to go beyond making it impossible for detenus to rebut a presumptions of legality and validity which an order under Section 3 of the Act, if prima facie good, would raise in any event. The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of Section 3 have been fulfilled. But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists this may have left the question in doubt whether Courts could call upon the detaining authorities to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions. In any case, so far as the rights of a detenu to obtain relief are hampered, the question raised touches the enforcement of the fundamental right to personal freedom. Its effect upon the powers of the Court under Article 226 is, as I have already indicated, covered by the language of Article 359(1) of the Constitution. It is not necessary for me to consider the validity of such a provision if it was to be .....

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..... of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency. But even then it has been contended on behalf of the petitioner that Art. 359 does not authorise the suspension of the exercise of the right guaranteed under Art. 32 of the Constitution, and that, in terms, the operation of Art. 32 has not been suspended by the President. This contention is wholly unfounded. Unquestionably, the Court's power to issue a writ in the nature of habeas corpus has not been touched by the President's order, but the petitioner's right to move this Court for a writ of that kind has been suspended by the order of the President passed under Art. 359(1). 'the President's order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22. Thus, as a result of the President's order aforesaid, the petitioner's right to move this Court, but Mot this Court's power under Art. 32" has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, during the Emergency". It is true that the Presidenti .....

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..... e Presidential order of 27th June, 1975, and by the provisions of Article 359(1) of the Constitution at all. If that, could be patent, without any real investigation or inquiry at all, it may stand on the same footing as an illegal detention by a private individual. The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus. There may, for example, be a case of a fabricated order of detention which, the alleged detaining officer, on receipt of notice, disclaims. It is admitted that Part Ill of the Constitution is only meant to protect citizens against illegal actions of organs of the State and not against wrongs done by individuals. The remedy by way of a writ of Habeas Corpus is more general. It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights (Vide: Shrimati Vidya Verma through next friend R. V. S. Mani, v. .....

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..... shuqbayi Eleko v. Officer Administering the Government of Nigeria & Anr. ([1931] A. C. 662 @ 670) where Lord Aktin said (at p. 670):           "Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence 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. The analogy of the powers of the English Home Secretary to deport alience was invoked in this case. The analogy seems very close. Their Lordships entertain no doubt that under the legislation in question, in the Home Secretary deported a British subject in the belief that he was an alien,, the subject would ha .....

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..... atter for comment is the decision in Eshuqbayi Eleko v. Officer Administering the Government of Nigeria (1931) (A.C. 662), where the government claimed to exercise certain powers, including deportation, against the appellant. The appellant applied for a writ of habeas corpus, on the ground that the ordinance relied on gave by express terms the powers contained only against one who was a native chief, and who had been deposed, and where there was a native custom requiring him to leave the area, whereas actually not one of these facts was present in the case. It was held in effect that me powers given by the ordinance were limited to a case in which these facts existed. It was a question of the extent of the authority given by the ordinance. That depended on specific facts capable of proof or disproof in a court of law, and unless these facts existed, there was no room for executive discretion. This authority has, in my opinion, no bearing in the present case, as I construe the powers and duties given by the regulation. There are also obvious differences between the ordinary administrative ordinance there in question and an emergency power created to meet the necessities of the war .....

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..... te a detention before the changes in the Act and the Presidential order of 1975. By Section 7 of the Act 39 of 1975 Section 18 was added to the Act with effect from 25th June 1975. This provision reads:           "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any". In view of what I have pointed out earlier, this provision was not necessary. It appears to have been added by way of abundant caution. By Section 5 of the amendment Act 14 of 1976 another amendment was made in Section 18, substituting , for the words "under this Act" used in Section 18, the words "in respect of whom an order is made or purported to have been made under Section 3", respectively from 25th day of June, 1975. These amendments are covered by Article 359 (1A) of the Constitution., so that their validity is unassailable during the Emergency on the ground of violation of any right conferred by Part III Of the Constitution. Nevertheless, the validity of Section 18 of the Act, as it stands, was challenged on the ground, as I understand it that is described as "the b .....

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..... ne, the less the imposed discipline". Laws and law Courts are only part of a system of that imposed discipline which has to take its course when selfdiscipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled By forces operating from within or from outside the country. What these forces are how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.   In Liversidge v. Sir John Anderson (supra) the following passages from Rex v. Halliday,(2) were cited by Lord Romer to justify principles adopted by four out five of their Lordships in Liversidges case in their judgments: (1) Per Lord Atkins (at p. 271):             "However precious the personal liberty of the subject may be, there is something for which it may well be, to .....

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..... towards the brink of an unfathomable abyss and the irreparable disaster which anarchy involves. Let me glance at the Constitutional History of England from where we took the writ of Habeas Corpus. Sir Erskine May wrote (See: Constitutional History of England, B Chapter XI):           "The writ of habeas corpus is unquestionably the first security of civil liberty. It brings to light the cause of every imprisonment, approves its lawfulness" or liberates the prisoner. It exacts obedience from the highest courts: Parliament itself submits to its authority. No right is more justly valued. It protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice. Yet, this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely., however, has this been suffered without jealousy, hesitation, and re monstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to .....

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..... ere everywhere suspected, and constitutional objects and language believed to be the mere cloak of sedition'? Let every man charged with treason be brought to justice; in the words of Sheridan, 'where there was guilt, let the broad axe fall, but why surrender the liberties of the innocent ?"           "The strongest opponents of the measure, while denying its present necessity, admitted that when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State. Ring leaders must be seized, outrages anticipated, plots disconcerted, and the dark haunts of conspiracy filled with distrust and terror. And terrible indeed was the power now entrusted to the executive . Though termed a suspension of the Habeas groups Act, it was. in truth, a suspension of Magna Charta, and of the cardinal principles of the common law. Every man had hitherto been free from imprisonment until charged with crime, by information upon oath, and entitled to a speedy trial, and the judgment of his peers. But any subject could now he arrested on suspicion of treasonable practices, with out specific charge or proof of guilt, his .....

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..... n or other emergency". And, as regards statutory powers of the Crown (See: Emergency Powers Act., 1920, Sec. l; Emergency Powers Act, 1964, Sec 1), we find (see para 983, page 627): "If it appears to Her Majesty that events of a specified nature have occurred or are about to occur, Her Majesty may by proclamation declare that a state or emergency exists. These events are those of such a nature as to be calculated, by interfering with the supply and distribution of food, water fuel or light , or with the means of locomotion, to deprive the community or any substantial portion of the community, or the essentials of life. No proclamation is to be in force for more than one month., without prejudice to the issue of another proclamation at or before the end of that period. xxx xxx xxx xxx Where a proclamation of emergency has been made, and, so long as it remains in force, the Crown has power by order in Council to make regulations for securing the essentials of life to the Community." In America also, the suspension of the right to writes of Habeas Corpus, during emergencies, so as to temporarily remove the regular processes of law, is permissible by legislation (See: Cooley's Con .....

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..... he Emergency provisions contained in part XVIII of our Constitution. We are really directly concerned only with Articles 352 and 353 and 358 and 359 as they now stand. They are reproduced below:           "352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. (2) A Proclamation issued under clause (1)- (a) may be revoked by a subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament. Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such P .....

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..... roclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect".        "359 (1) Where a Proclamation of Emergency is in operation, the President may by order 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 the rights so mentioned shall remain suspended for the period during which the Proclamation is ill force or for such shorter period as may be specified in the order.           (1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those righ .....

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..... terms of the proclamation of 26th October, 1962, as under:           "In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression . The Presidential order of 3rd November, 1962, reads as follows:           "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 person has been deprived of any such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The Presidential order of 27th June, 1975, runs as follows:                .....

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..... of 1962 makes no mention of pending proceedings, but the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending. The inference from this feature also is that all similar proceedings in future will, similarly, be affected. 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 fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result, so that the jurisdiction of Courts under Article 226, in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of Section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on 25th January 1976, making Section 16A(9) operative retrospectively .....

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..... ke a power which brings to any person in need whatever he or she may desire to have. It can only mean, for lawyers with their feet firmly planted in the realm of reality, what the law in a particular State or country is and what it enjoins. That law in England is the law made by Parliament. That is why Sir Ivor Jennings said (See: Law and the Constitution-III Edn.) that "in England supremacy of Parliament is the Constitution". And naturally, the Constitution of a country and not something outside it contains the Rule of Law of that country. This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country. It could not be rigid unchanging, and immutable like the' proverbial laws of the Medes and Persians. Nevertheless, one has to understand clearly what it means in a particular context. It cannot be like some brooding omnipotence in the skies. Its meaning cannot be what anyone wants to make it. It has to be, for each particular situation, indicated by the Courts which are there to tell the people what it means. This Court has, in no unmistakable terms, indicated what the Constitution means and how the Rule of Law embedded in it .....

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..... d by the Emergency provisions of the Constitution These provisions contain the Rule of Law for such situations in our country. In Mohd. Yaqub etc. v. the State of Jammu & Kashmir([1968] 2 S. C. R. p. 227 @ 234), a seven Judge bench of this Court pointed out that, whereas Article 358, by its own force, suspends the guarantees of Article 19, Article 359(1) has the effect of suspending the operation of specified fundamental rights (strictly speaking it is enforcement only which is suspended) so that these concepts cannot be used to test the legality of executive action. Now, much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III of our Constitution. If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended, it is impossible to say that there is a Rule of Law found there which is available for the Courts to apply during the emergency to test the legality of executive action. Makhan Singh v. State of Punjab ([1964] 4 S. C. R. 797 @ 821-822), a seven Judge decision of this Court was sought to be made a foothold for several arguments on behalf of the detenus. It, however, seems to me to have laid down more propositio .....

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..... ceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene Arts. 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential order and all citizens are precluded from moving any Court for the enforcement of the said specified rights". After having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the majority, ex pressed some views on the possible pleas which may still be open to petitioners in hypothetical cases despite the Presidential order of 1962, set out above, passed under Article 359(1). He said (at page 828):         "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 Art. 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the ma .....

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..... ra). I am therefore, of the opinion that pleas which involve any adduction of' evidence would, at any rate, be entirely excluded by the combined effect of the terms of the Presidential order of 27th June, 1975, read with the amended provisions of Section 16A(9) of the Act. A perusal of S. Pratap Singh v. State of Punjab,[1964] 4 S. C. R. 733) will show the kind of evidence which often becomes necessary to justify a plea of "malice in fact". Pleas about vires of the detention order itself e.g. whether it is based on, irrelevant grounds or was not passed after due application of mind) often require investigation or questions of fact involving scrutiny of actual grounds of detention which is hit by the embargo against an assertion of a right to move for enforcement of the right to personal'freedom and prohibition against disclosure of grounds. So long as the executive authorities of the State purport to act under the Act,, their preliminary objection against further hearing will prevail unless, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by .....

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..... s operative the invalidity of the provision could be demonstrated despite the existence of the emergency. I do not think that there is any such case before us. It seems to me to the possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right. I think it was placed on such a footing by Shah J., speaking for this Court. State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr.,( [1966] Supp S. S. C. R 702) another decision of the Constitution Bench of this Court, was also cited. There, an illegal order prohibiting the sending out of jail by a detenu of a book on matters of scientific interest only, for publication, was quashed by a High Court, under Article 226 of the Constitution" despite the Presidential order under Article 359 of the Constitution, on the ground that there was no condition at all in the Bombay Conditions of Detention order, 1951, authorising the Government of Maharashtra to prohibit the publication of a book of purely scientific interest just because the petitioner happened to be d .....

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..... te. By using the expression 'maintenance of law and. Order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rulers. I take the decision of this Court in Dr. Lohia's case to mean that if the order, on the face of it., is bad and does not satisfy the requirements of the law authorising detention, the detenu may be released. Sarkar, J., pointed out there:          "The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so-and that indeed is what the respondent State contends it seems to me that when an order is on the face of it not in terms of the rule a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule. In other words. in such a case the State cannot be heard to say or prove that the order was in fact made for example, to prevent acts p .....

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..... on the ground of mala fides or on the ground that any of the grounds mentioned in the order of detention is irrelevant. This case is also distinguishable on the ground that the context" from the point of view of the applicable law, was different. In Jai Lal v. State of West Bengal, (8) this Court, after taking evidence by affidavits into account and considering the pleas of mala fides, rejected the petitioner's case although the petitioner was held on the strength of earlier decisions of this Court, entitled to raised the pleas of mala fides despite the Proclamation of emergency and the Presidential order. Again, the context and the applicable law there were different We, however, see that, despite the Proclamation of emergency and a Presidential order under Article 359(1), this Court has held that High Courts, in exercise of their supervisory jurisdiction, could entertain Habeas Corpus petitions and enforce the principle of legality against the detaining authorities. No doubt, the executive and the legislative organs of the State were fully aware of the nature and effect of the decisions of this Court. It is, therefore., not surprising that, by means of a differently phrased Pre .....

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..... authorities of the State for the duration of the Emergency. That seems lo me to the effect of the emer ency provisions of the Constitution and the amendments of the Act already dealt with by me. Commenting upon Liversidge's case (supra) in "The Law Quarterly Review" (1942) (Vol. 58-p. 2)., the celebrated jurist and authority on English Constitutional history and law, Sir William Holdsworth, supporting majority decision there, opined:             "The question turns not, as Lord Atkin says upon whether the common law or the statute law has postulated a 'reasonable ' cause for a decision or an action, but upon the question whether or not the decision or the action to be taken on a reasonable cause raises a justifiable issue. Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justifiable,, but a political or administrative issue". He added             "On principle this distinction seems to me be he clearly right. If the issue is justifiable, if, that is, it raises an issue within t .....

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..... tice was ton susceptible to "the influence of personal solicitation, lobbying, and even corruption", and subject to guests of passion, prejudice, and partisanship. He thought that executive or administrative justice, which becomes inevitable in carrying out vast schemes of modern socialistic control and planning of economic, social, and cultural life of the people by the State was also, despite its own mechanisms of control against misuse of power" fraught with serious dangers indicated by him. Finally, Dean Pound finds judicial justice, though not entirely immune from error-and, sometimes, grievous and costly error-to be superior to the other two types of justice despite its own inherent shortcomings as compared with executive or administrative justice for special types of cases. Now , the question before us is not whether Courts should apply the high standards of "judicial justice" to the facts of each individual case which are not before us for consideration at all. The question before us is purely one of the interpretation of laws as we find them. If. on a correct interpretation of the legal provisions, we find that the jurisdiction of Courts was itself meant to be ousted, for .....

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..... legal justice than moral justice. Not only are the fact finding powers of Courts limited by rules of evidence and procedure, but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents in the country even if we do not take into account the liability of judges. like the rest of human beings, to err. Ends of justice can be frustrated by all kinds of abuses of the processes of Courts The machinery of executive justice, though not hidebound by technical rules of evidence and procedure, can also be and often is inordinately dilatory. Its wheels can be clogged by red-tape and by corrupt clerical underlings if their palms are not greased by honest citizens. Even those in the upper echelons of the bureaucracy can be sometimes hopelessly unable to see the true objects of an administrative scheme or of the policy embodied in a statute. They tend to be more anxious to please their superiors than to do justice so that matters in which executive heads may not get interested are liable to be neglected for years and even forgotten, whereas others, in which they ar .....

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..... indicated, it raises essentially matters of policy. Courts cannot decide what individuals with what kind of associations and antecedents should be detained. In some cases,, the associations and affiliations of individuals with groups or originations may certainly be matters of common public knowledge. But, it is only the membership and associations of persons which may be matters of public knowledge. The nature of information, and the manner in which individuals or organisations concerned may do something, which may constitute a danger to the security of the State, are matters of appraisement of situations and policies on which information could certainly not be broadcast. I, therefore, think that a challenge to the validity of Section 16A(9) based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well-founded. I will indicate below the safeguards which exist in the Act itself for obtaining redress on the executive side in cases' of preventive detention. As was held by this Court in Ram Jawaya Kapur's case (supra), there is no such strict separation of powers .....

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..... he emergency provisions, can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable 'basic structure" of the Constitution. It was submitted that, as this basic structure was outside even the powers of amendment of the Constitution under Article 368 of the Constitution, it could not be affected by emergency provisions or by provisions of the Act. We were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what was'represented to be the "Rule of Law" as a part of the basic structure of the Constitution. It seems to me that the theory of a "basic structure" of the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with Constitutional provisions. The Constitution cannot have a base cut away from the super-structure. Indeed, as explained above, it seems to me that the emergency provisions could themselves be regarded as part of the basic structure of the Constitution. At any rate, they are meant to safeguard the basis of all orderly Government according to law. Speaking f .....

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..... ut the bona fides of the order can be challenged. The explanation seems to me to be that want of bona fides or "malice in fact" was placed on the same footing as fraud, which nullifies and invalidates the most solemn proceedings. It may, however, be pointed out that, in Greene's case (supra), it was not held that mala fides or any other invalidating fact could be proved during the emergency in habeas corpus proceedings. An explanation of an almost formal exception for a case of want of bona fides could be that the reservation of such a plea was meant only for such proceedings in which "malice in fact" could reasonably be gone into and adjudicated upon. The position before us, however., is very clear. Section 16A(9) imposes a bar which cannot be overcome in Habeas Corpus proceedings. In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than a merely ordinary rebuttable presumption for purposes of proceedings under Article 226 of the Constitution. These are, as already indicated summary proceedings. I .....

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..... rtial Law has been proclaimed. The argument seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected, the resulting position would be no different from that which prevails when Martial Law is declared. There is no provision in our Constitution for a declaration of Martial Law. Nevertheless, Article 34 of the Constitution recognises the possibility of Martial Law in this country. It provided:           "34 notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other t person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area?' As there is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed", it could be urged that a Presidential order under Article 359(1) has a similar effect and was intended to provide for .....

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..... t of force necessary in the circumstances to restore order. This use or force is sometimes termed "martial law". When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, but it is for the civil courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law. The powers. such as they are, of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war. and in the absence of an act of Indemnity, the civil courts may inquire into the legality of anything done during the state of war. Even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected. Whether this power of using extraordinary measures is really a prerogative of the Crow, or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the amount of force necessary to suppress disorder, is not quite free from doubt. it is, however, clear that so-called military courts set up under martial law are not really courts at all, and So an order of pr .....

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..... iate steps cannot be denied. And, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus arrested last year have already been released. This shows that whole situation is periodically reviewed. Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated. is almost maternal. Even parents have to take appropriate preventive action against those children who May threaten to burn down the house they live in. If there are, under our Constitution, some supreme obligations or overriding powers or duties, vested in superior Court-s, as learned Counsel for the detenus seemed to be contending for, to enforce the claims of constitutionality, quite apart from the suspended powers and duties of Courts to enforce fundamental rights, I am sure that the current emergency, justified not only by the rapid improvement. due to it in the seriously dislocated national economy and discipline but also by the rapid dangers of tomorrow, apparent to those who have the eyes to see them, averted by it, could not possibly provide the occasion for the discharge .....

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..... s, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in Habeas Corpus proceedings. The preliminary objection of the State must be accepted in such a case. The result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside. The High Court concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 359(1) of the Constitution. CHANDRACHUD, J.  During, the last few years, many questions of far-reaching constitutional importance have engaged the attention of this Court but these appeals, perhaps, present problems of the gravest magnitude. They involve an adjustment between two conflicting considerations, the liberty of the individual on one hand and exigencies of the State on the other. This balancing of the most precious of human freedoms the liberty of the subject as against the most imperative of the State's obligations the security of the State gives rise to multidimensional problems quite beyond the scope an .....

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..... f war or of external aggression or internal disturbance, if the President is satisfied that there is imminent danger thereof. Clause (5) (a) makes the satisfaction of the President under clauses (1) and (3) final, conclusive and non-justiciable. By clause (5) (b), neither the Supreme Court nor any other court has jurisdiction, subject to the provisions of clause (2), to entertain any question on any ground regarding the validity of a proclamation issued under clause (1) or the continued operation thereof. Article 358 provides that:             "While a Proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." Article 359(1) empowers the President, while a Proclamation of emergency is in oper .....

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..... such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder(Emphasis supplied). Article 14 was added to the order of November 3, 1962 by the amendment dated November 11, 1962. The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2)(a) of the Constitution. The Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter . The Act of 1962 expired on July 10, 1968. The maintenance of Internal Security Act, 26 of 1971, (MISA) was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan. Section 3(1) of that Act provides as follows:      "3.(1) The Central Government or the State Government may,- (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to- (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii .....

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..... on the 3rd December, 1971 and on the 25th of June, 1975 are both in force. The order shall extend to the whole of the territory of India. This order shall be in addition to and not in derogation of any order made before the date cf this order under Clause (1) of Article 359 of the Constitution." Various persons detained under section 3(1) of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Groups. When those petitions can. up for hearing, the Government raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas corpus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 f he Constitution only. The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential order dated June 27, 1975 the petitions, according to the Government, were liable to be dismissed at the threshold. The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, D .....

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..... The learned Attorney-General contended that Article 21 is the sole repository of the right to life and personal liberty and if the right to move any court for the enforcement of that right is suspended by the Presidential order issued under Article 359(1), the detenus have no locus standi to file the writ petitions and therefore these petitions must be dismissed without any further inquiry into the relevance of the material on which the grounds of detention are based or the relevance of the grounds or the bona fides of the detaining authority. If the MISA permits the non-disclosure of grounds and indeed prevents their disclosure, there is no question of inquiring into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority has recorded in the order of detention.               "There is no half-way house" asserted the Attorney-General. But, not inconsistently with the basic submission that the detenus have no locus standi to file the petitions for habeas corpus, he conceded that the court may grant relief if the detention order is on the face .....

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..... hat during the emergency, it is free to make laws in violation of the fundamental rights mentioned in the Presidential order. 2. Under a Constitution which divides State functions into Executive, Legislative and Judicial, the executive functions must be discharged consistently with the valid laws passed by the Legislature and the orders and decrees passed by the Judiciary. The suspension of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace. Since there is a valid law regulating preventive detention, namely, the MISA, every order of detention passed by the Executive must confconfirm to the conditions prescribed by that law. 3. Article 359(1) may remove fetters imposed by Part Ill but it cannot remove those arising from the principle or rule of law or from The principle of the limited power of the Executive under the system of checks and balances based on separation of powers . 4. The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent com compulsion arising from t .....

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..... nglomeration of positive rights. It is a negative concept and constitutes an area of free action because no law exists curtailing it or authorising its curtailment. 12. Section 16A(9) of the MISA is unconstitutional as it encroaches upon the High Courts' powers under Article 226 of the Constitution by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State, so that it will be against the public interest to disclose the same. 13. Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25, 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment. 14. The dismissal of writ petitions on the around that such petitions are barred by reason of the Presidential order issued under Article 359(1) would necessarily mean that during the emergency no person has any right to life or personal liberty; and 15. If the detenus are denied any forum for the redress of their grievances, it would be open to the Executive to whip the detenus to start the .....

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..... ithout the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one's own pre-disposition, is conducive to a more realistic appraisal of the emergency provisions. A declaration of emergency produces far-reaching constituencies. While it is in operation the executive power OF the Union, by reason of Article 353, extends the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Secondly, the power of Parliament to make laws with respect to any matter includes, during emergency, the power to make laws conferring powers and imposing duties or authorising the conferring of powers and imposition of duties upon the Union or Officers and authorities of the Union as respects that matter, notwithstanding that the matter is not enumerated in the Union List. Article 354 confers power on .....

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..... security of civil liberty. Julius Stone in 'Social Dimensions of Law and Justice(Ed. 1966. p. 203) calls it a picturesque writ with an extraordinary scope and flexibility of application. The Latin term "habeas corpus" means 'you must have the body' and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum. The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government. The liberty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies, Judges have played a historic role in guarding that freedom with real and jealousy, though within the bounds, the farthest bounds, of constitutional power. The world-wide interest generated by the lively debate in Liversidge v. Sir John Anderson and Anr.( [1942] A. C. 206; Lord Atkin, p. 244) has still not abated. And repeated citation has not blunted the edge of Lord Atkin's classic dissent where he said:           .....

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..... beas corpus May says that it protects the subject from unfounded suspicions, from the aggressions of power and from abuses in the administration or justice. "Yet this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State." Dicey in his Introduction to the Study of the Law of the Constitution says that:           "During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous Limitation on the authority of the executive government. Hence h .....

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..... the individual is required to be subordinated to the larger interests of the State. In times of grave disorders, brought about by external aggression or internal disturbance, the stability of political institutions becomes a sine qua non of the guarantee of all other rights and interests. "To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible. The "clear and present danger test" evoked by Justice Holmes in Schenck v. United Slates(Blackston's Commentaries on the Laws of England, 4th Ed. Vol. III pp.125-126), may well be extended to cases like the present where there is a threat of external aggression. On the heels of American entry into the first World War on June 15, 1917, the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage. It prescribed punishment of a fine of 10,000 dollars and 20 years imprisonment. A year later, the Act was amended by what is popularly called the Sedition Act which is rendered it illegal even to say anything to obstruct the sale of .....

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..... g a petition for the writ of habeas corpus to contend that order under which he is detailed is ultra vires of the statute to which the order owes its existence. But one must have regard to the substance of the matter and not to mere from the real and substantial relief which the detention for by a writ of habeas corpus is that he should be freed from detention and the reason for the relief is that the order of detention is ultra vires. It is clear, apart from the Form in which the relief may or may not be clothed, that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty. The history of the writ of habeas corpus which is succinctly narrated in the late Mr. M. C. Setalvad's 'The Common Law in India'(1) shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom. Mr. Setalvad quotes that the writ has been described as "the key that unlocks the door to freedom". Respondents were surely not interested in obtaining an academic declaration regarding the ultra vires ' character of their d .....

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..... upreme Court or the High Court for the enforcement of The fundamental rights conferred by Part III of the Constitution. In Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura ([1964] 3 S. C.R. 442, 451) a Constitution Bench of this Court, dealing with an order issued by the President on November 3, 1962 under Article 359(1), observed:             "...Unquestionably, the Court's power to issue a writ in the nature of Habeas corpus has not been touched by the President's order, but the petitioner's right to move this Court for a writ of that kind has been suspended by the order of the President passed under Art. 359 (1) . The President's order does not suspend all the rights vested in citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22. Thus, as a result of the President's order aforesaid, the petitioner's right to Move this Court, but not this Court's power under Art. 32 has been suspended during the operation of Emergency, with the result that the petitioner by no locus standi to enforce his right, if any, during the Emergency, According to the respondents, the limi .....

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..... liance was placed by the respondents on the decisions of this Court in Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura ([1964] 3 S. C. R. 142) and Makhan Singh v. State of Punjab([1964] 4 S. C. R. 797) in support of their contention that Art. 359(1) operates in the legislative and not in the executive field. These decisions do not support such a proposition. On the contrary, it is clear from the to decisions that the effect of the Presidential order under Art. 359(1) is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are mentioned in the order. Neither of the two cases deals directly with the question G whether the operation of Art. 359(1) is restricted to the legislative field but, if at all, the ratio of those cases may be logically extended to cover executive acts also. During times of emergency, it is the Executive which commits encroachments on personal liberties and the object of Art. 359(1) is to empower the President to suspend the right to move any court for the enforcement of a right to complain against the actions of the Executive, no less than against the laws passed by The Legisl .....

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..... s the Constitution requires the Executive to obey the laws made by the Legislature, therefore, Article 359(1) which is an emergency measure, must be construed consistently with that position. The argument of basic feature is wrong for yet another reason that Article 359(1) does not provide that the Executive is free to disobey the laws made by the Legislature. Al the cost of repetition it must be said that what Article 359(1) achieves is merely the suspension of the right of an individual to move a court for the assertion of' his fundamental rights which have been mentioned in the Presidential order, even if such rights are contravened either by the Legislature or by the Executive. To permit a challenge in a court of law to an order of detention, which is an executive action, on the ground that the order violates a fundamental right mentioned in the Presidential order, is to permit the detenu to enforce a fundamental right during emergency in a manner plainly contrary to Article 359(1). The language of that Article, it is admitted on all hands, is clear and unambiguous. The constitutional consequences of a Proclamation of Emergency are grave and far-reaching. Legislatures can, dur .....

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..... 21 cannot automatically entail the suspension of the rule of law because even during an emergency the argument proceeds, the rule of law is not and cannot be suspended. The Executive has a limited authority under the Indian Constitution and it can act within the residual area as it pleases, so long as it does not act to the prejudice of the citizen. It is always incumbent on the Executive to justify its action on the basis of law and this, according to the respondents, is the principle of legality or the rule of law. The respondents' argument that all executive action which operates to the prejudice of a person must have the authority of law to support it is indisputably valid in normal situations. In the absence of Proclamation of Emergency and in the absence of a Presidential order Article 359(1) of the kind that we have in the instant case, the I executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action is liable to be challenged by an appropriate writ. That the rule of law must prevail in normal times is the rule of law under the Indian Constitution. But it is necessary to clear a misconception. Even though the .....

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..... at for acts done to the prejudice of the respondent after the declaration of emergency under Article 352. no immunity from" the process of the Court could be claimed under Article 358 of the Constitution since the order was not supported by and, valid legislation. Shah J who spoke on behalf of the Bench observed in his judgment that an executive action which operates to the prejudice of any person must have the authority of law to support it and that the terms of Article 358 do not detract from that rule. Article 358, according to this Court, did not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. It is important to bear in mind that Bharat Singh's case was concerned with a pre-emergency law, though the impugned order was passed thereunder during the operation of emergency. The law having been passed in 1959, which was before the declaration of emergency, it had to comply with Arti .....

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..... tution as the President had declared a state of emergency on October 20, 1962. This question was answered in the negative on the ground that the executive order which was immune from attack is only that order which the State was competent to make but for the provisions contained in Article 19. Since the executive action of the State Government was invalid apart from Article 19, it was not immune from attack merely because a Proclamation of Emergency was in operation. The important point of distinction is that in Ibrahim's case, the impugned order was not made under the authority reserved by the Defence of India ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of sugar exclusively to co-operative societies. In Bennett Coleman Company's case the impugned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emer ency. Relying on Ibrahim's case and Bharat Singh's case, this Court held that Article 358 does not authorise the taking of detrimental executive action during the emergency without any legislative authority or in pur .....

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..... to consider the meaning and effect of Article 359 (1) which has no parallel in the English law. Eleko's principle is unquestionably supreme in times of peace and so is the validity of the observations made by Ramaswami J. in Om Prakash's case. Both of those cases were concerned with a totally different problem, the problem of peace, not of war or internal disturbance. The 'Rule of Law' argument like the 'Basic Feature' argument is intractable. Emergency provisions contained in Part XVIII of the Constitution which Lure designed Lo protect the security of the State are as important as any other provision of the Constitution. If the true constriction and effect of article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law. The rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution. The Advocate General of Gujarat had peculiar problems to voice. arising out of the fluid and uncertain political situation in his State. He was unable to .....

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..... convicted of murder and sentenced to death can assert his right to life by challenging the conviction and sentence in appeal, in spite of the Presidential order under Article 359(1); (ii) if a person is wrongfully confined. he can ask for his personal liberty by prosecuting the offender in spite of the Presidential order; and (iii) if a money-decree is passed against the Government, the decree can lie enforced even if the right to enforce the right to property is suspended by the 'Presidential order. (3) Prior to the enactment of the Constitution statutory, contractual and common law rights were in existence and those rights can be taken away only by the Legislature. They cannot be affected by the Presidential order. The pre-Constitution common law and statutory rights to personal liberty continued in force by reason of Article 372 of the Constitution, since those rights were not repugnant to any provision of the Constitution. If the fundamental right to personal liberty is suspended by the Presidential order, the pre-Constitution laws will begin to operate by reason of the their of eclipse. There is no authority for the proposition that on the conferment of fundamental rights by .....

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..... the Government to accept that opinion, in spite of the Presidential order. (5) Even after the passing of a Presidential order, Parliament may create new rights to personal liberty and such rights can be enforced in spite of the Presidential order. (6) Civil liberty or personal liberty is not a conglomeration of position rights. It operates in an area of free action and no law can possibly curtail it. (7) If a law affecting the fundamental right to personal liberty is void for want of legislative competence., it can be challenged in spite of the Presidential order (8) The suspension of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land, and if they do so, they can be brought to book in spite of the Presidential order. I look at the question posed by the respondents from a different angle. The emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose, various powers have been conferred on the Parliament and the President by Chapter XVIII of the Constitution. One of such powers is to be found in Article 359(1) under which the Presi .....

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..... Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will remain in abeyance is only the enforcement of the right to personal liberty conferred by Part III. The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era. If the arguments of the respondents is correct no action to enforce the right to personal liberty can at all fall within the mischief of the presidential order even if it mentions Articles19, 20, 21 and 22 because, every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is' being enforced is either the natural right to personal liberty or generally, the pre-Constitution right to personal liberty. The error of the respondents' argument lies in its assumption, and in regard to the argument of some of the counsel in the major articulate premise, that the qualitative content of the non-constitutional or pre-constitutional right to personal liberty is d .....

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..... 359 (1) does not really contemplate that while declaring the suspension of the right to move any court, the President must or should specify the Article or the Articles of the Constitution the enforcement of rights conferred by which shall be suspended. What Article 359 (1) contemplates is that the President can declare the suspension of the right to move any court for the enforcement cf the rights mentioned in Part III. The words "conferred by Part III" which occur in Article 359(1) are not intended to exclude or except from the preview of the Presidential order, rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era, apart from the Constitution. The emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III. To put it differently. the words ''conferred by Part III" are used only in order to identity the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of' the Pr .....

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..... case,( [1970] 3 S. C. R. 530, 578) the right conferred by Articles 21 and 19 cannot be treated as mutually exclusive. But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another-. The "right conferred by Article 21" is only a description of the right of personal liberty in order to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. The circumstance that the pre-Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because, even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution, all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential order. The theory of 'eclipse' has no application to such cases because; .....

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..... e decree and therefor what is put into execution is the rights arising under the decree. The illustration regarding The issuance of a process against the Governor of a State need not be pursued seriously because such an event is hardly ever likely to happen and id it does, the gubernatorial rights may possibly withstand the Presidential order under Article 359(1) . As regards the flouting of the opinion of the Advisory Board by the Government, a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different hooting as the very nature of such a proceeding is basically different. Lastly, it is unrealistic to believe that after the passing of the Presidential order suspending the existing constitutional rights, Parliament would create new rights to personal liberty so as to nullify the effect of the Presidential order. The easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 352(2) (b) of the Constitution or to disapprove of the Presidential order issued under Article 359(1) when it is placed before it under Article 359(3) of the Constitution. But as I have said earli .....

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..... pen to any party to ask for a writ of habeas corpus as a matter of common law. It was contended for the respondents that the High Court have jurisdiction under Article 226 to issue writs and directions not only for the enforcement of fundamental rights but "for any other purpose" and since by their petitions they had really asserted their non- fundamental rights the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential order. This argument cannot be accepted because the entire claim of the resonants is that the order of detention are in violation of the MISA, which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution. By that Article, no person can be deprived of his life or personal liberty except according to procedure established by law. The grievance of the respondents is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by the MISA. In substance therefor they are complaining of the violation of a fundamental right, which it is not open to them to do in view of the Pre .....

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..... right to move the Supreme Court under Art. 32 and the High Court under Art. 226 for the enforcement of the rights mentioned in the order. But while the majority took the view that the petition under section 491 of the Criminal Procedure Code was also barred, Subha Rao J. held that the petitioners' right to ask for relief by filing an application under section 491 was not affected by the Presidential order. This difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April 1, 1974 when the new Code of Criminal Procedure came into force. The conclusion of the Court in Makhan Singh's case may be summed up thus: 1. Art. 359 is reasonably capable of only one construction as its language is clear and unambiguous. 2. The suspension of Art. 19 contemplated by Art. 358 removes during the pendency of the emergency the fetters created on the legislative and executive powers by Art. 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Art. 19, their validity is not open to challenge either during the continuance of the emergency or even there .....

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..... y right after 1923, and after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provision of s. 491(1)(b) itself. 9. Whether or not the proceedings taken under s. 491 (1) (b) fall within the purview of the Presidential order, must depend upon the construction of Art. 359 ( 1 ) and the order, and in dealing with this point, one must look at the substance of the matter and not its form. 10. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under Art. 226(1) of Art. 32(1) of the Constitution, or he may take a proceeding under s. 491(1)(b) of the Code. But despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking .....

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..... o the fundamental rights specified in the said order. lt is a piea which is independent of the said rights and its validity must be examined. (The Court, however, rejected the contention that the impugned provisions of the Act suffered from the vice of excessive delegation.) No judgment can be read as if it is a statute. Though the judgment of the majority contain the conclusions set out in (a) to (d) above, I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential order which was issued in that case. The order dated November 3, 1962, which was the subject matter of Makhan Singh's case, has been set out at the beginning of this judgment. That order suspends the right of a person to enforce the rights conferred by Articles 14, 21 and 22 "if. such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The Presidential order dated June 27, 1975 with which we are concerned in the instant case docs not contain ally clause similar to the one extracted above from the order dated November 3, 1962. The inclusion of that clause ill the earlier order has a signif .....

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..... t for the enforcement of the rights conferred by Part III is not taken away by Article 359 (1) It is the Presidenial order passed in pursuance of the powers conferred by, that Article by which such a consequence can be brought about. It would be useful in this connection to refer Lo the decision of this Court in Dr. Ram Manohar Lohia v. State of Bihar & ors.(') The appellant therein was also detained under rule 30(l)(b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release. the petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution. A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential order dated November 3, 1962, the same as in Makhan Singh's case (supra) Sarkar J., who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the order of November 3, 1962 were to take away all rights to personal liberty under Articles 21 and 22. According to the learned Judge, the particular President .....

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..... der the Act or a rule or order made thereunder but in contravention thereof, his right to move the court in that regard would not be suspended. These judgments bring out clearly the ratio of Makhan Singh's case which arose out of the first Presidential order dated November 3, 1962. The Presidential order with which we are concerned in The instant case is not subject to the precondition that the detenu should have been deprived of his rights under any particular Act and, therefore, there is no scope for the inquiry whether the order is consistent or in conformity with any particular Act. This important distinction has not been fully appreciated in some of the judgments under appeal. The observations contained in the majority judgment in Makhan Singh's case that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the Presidential order dated June 27, 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by mala fides. The proposition that a mala fide order has no existence in the eye of law is not pec .....

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..... on. The only exception was as stated in section 8 (2 ), that the detaining authority need not disclose facts which it considers to be against the public interest to disclose. Section 16A(l) provides that the pro visions of section 16A shall have effect during the period of operation of Proclamation of Emergency issued on December 3, 1971 and on June 25, 1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest. By subsection (2) of section l6A, the case of every person against whom an order of detention was made under the MISA on or after June 25, 1975 but before the commencement of section 16A on June 29, 1975 is required to be reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency. the answer be in the affirmative, the Government is required to make a declaration to that effect By sub-section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is similarly required to consider whether the detention of the persons is necessary for dealing effectively .....

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..... t section. Turning to the constitutional validity of section 16A(9), the contention of the respondents is that clause (a) of section 16A(9) by which the grounds of detention and the information and materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of the High Courts under Article 226 of the Constitution and is, therefore, void. It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court's jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it, if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court. It is a relevant consideration for examining the charge that the true purpose of section 16A(9) is to encroach on the powers of the High Court under Article 226, that the operation of section 16A itse .....

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..... the public interest would suffer by the disclosure. By section 162, the High Court cannot inspect a document if it refers to matters of State. But these provisions do not constitute an invasion of the High Court's jurisdiction under Article 226. The writ jurisdiction of the High Court under that Article has to be exercised consistently with the laws made by competent legislatures within the area of their legislative power. I do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court's power to undertake the fullest enquiry into the matter before it. the law becomes unconstitutional. The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction. These are not for that reason unconstitutional qua the High Court's jurisdiction under Article 226. Counsel for the respondents cited the parallel of section 14 of the Preventive Detention Act, 1950 which was struck down by this Court in A. K. Gupalan v. The State ([1950] S.C. R. 88). Sub-section (1) of that section provided, in substance,that .....

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..... may be read down so as to enable the court to examine the forbidden material is impossible to sustain. What use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclose to a party before it? The High Court, at the highest, could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict. G I am, therefore of the opinion that the challenge made by the respondents to the constitutionality of section 16A(9) must fail. Section 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law, any. the 'natural law' theory was discarded in Kesavanadun Bharati's([1973] Supp. S. C. R. I) case and likewise the common law theory was rejected in Makhan Singh's case. The section only declares what was the true law prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words "in respect of whom all order is made on purported to be ma .....

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..... l comfort that those powers are granted with the consent of the Parliament. The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament. while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, h l hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom. I find it not so easy to summarize my conclusions in simple, straightforward sentences. The many-sided issues arising before us do not admit of a monosyllabic answer- 'yes', or 'no'. All the same these broadly are my conclusions: (1) The order issued by the President on June 27, 1975 under Article 359(1) of the Constitution does not suspend the fundamental principle that a .....

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..... ecution of decrees passed against the Government, nor does it bar the grant of relief other or less than the release of the detenu from detention.  (8) Section 16A(9) of the MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under Article 226. There is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties. (9) Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation. And so we go back to The Zamora([1916] 2 A. C. 77)', Rex v. Holliday([1917] A. C. 260, 271), Liversidge v. Anderson([1942] A. 206), Greene v. Secretary of State([l942] A. 284). A jurisdiction of suspicion is not a forum for objectivity. "These who are responsible for national security must be the sole judges of what the national security requires"; "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement". As a result, perhaps the .....

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..... ly bar the maintainability of these petitions, but left open certain grounds of challenge which could yet be urged against the validity of the order of detention. These different High Courts were not agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential order dated 27th June, 1975. There were differences of opinion amongst them, but for the purpose of the present appeals, it is not necessary to refer to those differences as they are not material. The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A, sub-section (9) of the Maintenance of Internal Security Act, 1971 and while the Rajasthan High Court accepted the interpretation of that sub-section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the sub-section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based. Since in the view of these High Courts, .....

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..... ergency and how institutions and procedures different from those in normal times are necessary to combat it. It would be both profitable and necessary to embark upon this inquiry, because Article 359, clause (1) under which the Presidential order dated 27th June, 1975 has been issued is a consequential provision which comes into operation when a Proclamation of emergency is issued by the President under Article 352. It is evident that a national emergency creates problems for a democracy no less than for other governments. A totalitarian Government may handle such a situation without embarrassment. But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy. The question arises-and that was a question posed by Abraham Lincoln on July 4, 1861: can a democ- ratic constitutional government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend. This question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three la .....

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..... dinarily imperil the existence of a constitutional democracy. Now, it is obvious that the complex system of government of a constitutional democratic State is essentially designed to function under normal peaceful conditions and is often unequal to the exigencies of a national crisis. When there is an emergency arising out of a national crisis, a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions. This alteration invariably involves government of a stronger character. The government has to assume larger power in order to meet the crisis situation and that means that the people would have fewer rights. There can be no doubt that crisis government means strong and arbitrary government and as pointed out by Cecil Carr in his article on "Crisis Legislation in Great Britain" published during the Second World War "in the eternal dispute between Government and liberty, crisis means more government and less library." In fact Scrutton, L.J. never a fulsome admirer of government departments, made the classic remark in his judgment in Ronnfeldt v. Phillips(') that war cannot be carried on accordi .....

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..... e unlawful. In the same way, it was enacted in the Habeas Corpus A Act, 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corpus. There were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ. The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes, it has throughout "been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executi .....

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..... ter and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry. He applied for a writ of habeas corpus and, despite the Presidential authorisation suspending the writ, the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law. History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis, but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it. It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possessions of man, the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past, though very sparingly. So also in Great Britain the writ of habeas corpus which, as May points out, "is unquestionably the first security of liberty" and which "prote .....

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..... be actual occurrence of war or external aggression or internal disturbance in order to justify a Proclamation of Emergency. It is enough if there is imminent danger of any such crisis. It will be seen that this Article provides for emergencies of the first two types mentioned above. The third type of emergency threatening the financial stability of India or any part thereof is dealt with in Article 360 but we are not concerned with it and hence it is not necessary to consider the provisions of that Article. So far as the emergencies of the first two types are concerned, the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain. These are provided for in the Constitution itself. In the first place, Article 250 provides that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, which means that the federal structure based on separation of powers is put out of action for the time being. Secondly, Article 353 declares that during the time that Procl .....

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..... e State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate. except as respects things done or omitted to be done before the law so ceases to have effect. (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament." It may be pointed out that clause (1A) did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution (Thirty-eighth Amendment) Act, 1975. We are not directly concerned in these appeals with the interpretation of Article 358 and clause (1A) of Article 359, but in order to arrive at the proper meaning and effect of clause (1) of Article 359, it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause (1A) of Article 35 on the one hand and clause (1) of Article 359 on the other. It would be convenient at this stage to set out t .....

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..... s and hence the present appeals were brought by the State Governments and the Union of India raising the same contention as to the maintainability of the writ petitions. It may be pointed out that whilst the present appeals were pending before this Court, the President issued another order dated 8th January, 1976 under clause (1) of Article 359 suspending the enforcement of the rights conferred by Article 19. This Presidential order is not material, but I have referred to it merely for the sake of completeness. Now the orders of detention challenged by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the Maintenance of Internal Security Act, 1971. The detenus challenged them on various grounds, namely, the orders of detention were not in accordance with the provisions of the Act, they were not preceded by the requisite subjective satisfaction, which constitutes the foundation for the making of a valid order of detention, they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act. The substance of these grounds according to the Union of India and the State .....

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..... ecutive not to act to the detriment of a person without the authority of law can be enforced under Article 226 by issue of a writ "for any other purpose". When a detenu files a petition under Article 226 challenging the validity of the order of detention on the ground that it is not in accordance with the Act or is outside the authority conferred by the Act, he seeks to enforce this obligation against the State Government and the suspension of enforcement of the fundamental right under Article 21 does not affect the maintainability of his writ petition. The detenus also contended that in any event the right to personal liberty was a statutory right and the suspension of the fundamental right conferred by Art. 21 did not carry with it suspension of the enforcement of this statutory right. The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory right in a person not to be deprived of his personal liberty except in accordance with law, apart from that contained in Article 21 and therefore, the writ petitions filed by the detenus we .....

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..... sk ourselves: could the Constitution-makers have intended that even in times of war or external aggression, there should be no power in the President, as the head of the Nation, to bar judicial scrutiny into legality of detention. It may be pointed out that even in the United States of America, the President has power under Article I Placitum 9, clause (2) of the United States Constitution to suspend the privilege of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it". The British Parliament has also on several occasions in the past suspended the writ of habeas corpus by legislative enactment, though in limited classes of cases. The Constitution-makers were obviously aware that even in these countries which are essentially democratic in character and where the concept of constitutional government has had its finest flowering, the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary power in times of national peril occasioned by war or external aggression. Could the C .....

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..... ction 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 any of the specified fundamental rights". Vide Makhan Singh v. State of Punjab([1964] 4 S. C. R. 797). Therefore, there can be no doubt that in view of the Presidential order which mentions Article 21, the detenus would have no locus standi to maintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21. That should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by Art. 21, for without defining it, it would not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct right. But before I examine this question, it would be convenient first to deal with clause (1A) of Article 359 and ascertain its meaning and effect. Clause (1A) of Art. 359 did not find a place in the Constitution when it was originally enacted, but it was inserted with retrospective effect .....

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..... cutive action'? If it could, it would not be restricted from doing so by reason of the particular fundamental right mentioned in the presidential order. The Presidential order would, therefore, have the effect of enlarging the power of the executive of the legislature by freeing it from the restriction imposed by the fundamental right mentioned in the Presidential order, but it would not enable the legislature or the executive to make any law or to take any executive action which it was not otherwise competent to make or to take. Now it is clear that, if the fundamental rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even if the Presidential order mentions Art. 21, clause (1A) of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law. If an order of detention is made by the executive without the authority or law, it would be invalid and its invalidity would not be cured by clause (1A .....

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..... nconstitutional as it infringed the fundamental rights under clauses (d) and (e) of Art. 19(1) and if it was void before the proclamation of Emergency, "it was not revived by the Proclamation". But on this view, another contention was put forward on behalf of the State Government and that was that Article 358 protects not only legislative but also executive action taken after the Proclamation of Emergency and, therefore, executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under Art. 19, and consequently, the order of the State Government, though made under void law was protected against challenge under Art. 19. This contention was also rejected by the Court in the following words:             "In our judgment, the argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others . it merely pr .....

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..... ion taken during the emergency has no authority of a valid law, its constitutionality can be challenged". These observations clearly show that where executive action is taken without any legislative authority or in pursuance of a law which is void it would not be protected by Art. 358 from challenge under Art. 19 and it would be unconstitutional to the extent to which it conflicts with that Article. If this be the interpretation of Art. 358 as laid down in the decisions of this Court, a fortiori a like interpretation must be placed on clause (1A) of Art. 359, as both are closely similar in form as well as language. It must, therefore, be held that even though a Presidential order issued under clause (1) of article 359 mentions Art. 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether by reason or there being no law at all or by reason of the law under which the detention is made being void, clause ( 1A) of Art. 359 would not protect it from challenge under Art. 21 and it would be in conflict with that Article. The only question then would be whether the detenu would be e .....

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..... cultural and educational rights, right to property and right to constitutional remedies. Arts. 19 to 22 occur under the heading "Right to Freedom" and what is enacted in Art. 21 is a right, namely, the right to life and personal liberty. It is true that Art. 21 is couched in negative language, but it is axiomatic that to confer a right it is not necessary to use any particular form of language. It is not uncommon in legislative practice to use negative language for conferring a right. That is often done for lending greater emphasis and strength to the legislative enactment. One instance may be found in s. 298, sub-s. (1) of the Government of India Act, 1935 which provided that no subject of His Majesty domiciled in India shall on grounds only of religion, place of birth descent, colour or any of them A be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India. Though this provision was couched in negative language, the Judicial Committee of the Privy Council in Punjab Province v. Daulat Singh(73 Indian Appeals 59) construed it .....

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..... rt. 29(1), 30(1), 26, 25 and 32, in others to ensure protection of individual rights they take specific forms of restrictions on State action-legislative or executive - Arts. 14, 15, 16, 20, 21, 22(1), 27 and 28; The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part Ill of the Constitution weaves a pattern of guarantees on the texture of basic human rights." This statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty. Let us, for a moment, consider what would be the consequences if Art. 21 were construed as not conferring a right to personal liberty. Then there would be no fundamental right conferred by Art. 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art. 21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under Art. 32, for that Article is availabl .....

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..... fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." There can be no doubt that in view of the decision of this Court in R. C. Cooper's case (supra) the minority view must be regarded as correct and the majority view must be held to have been overruled. No attribute of personal liberty can be regarded as having been carved out of Article 21. That Article protects all attributes of personal liberty against executive action which is not supported by law. lt is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them. It is enough to say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21. Now Article 21 gives protection against deprivation of personal liberty but what is the nature and extent of this protection ? In the first place, it may be noted that this protection is only against State action and not against private individuals. Vide P. D. Shamdasani .....

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..... ble. It is clear on plain natural construction of its language that Article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty, and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law". When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation. Article 21 thus provides both substantive as well as procedural safeguards. This was pointed out by Patanjali Sastri, J. in A. K. Gopalan v. State of Madras (supra) at page 195 of the Report where the learned Judge said:            "If article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that articl .....

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..... opalan's case ( supra) . Article 21, thus, operates not merely as a restriction on executive action against deprivation of personal liberty without authority of law, but it also enacts a check on the legislature by insisting that the law, which authorises deprivation, must establish a procedure. What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of Article 22. Secondly, 'law' within the meaning of Article 21 must be a valid law and not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the fundamental rights enumerated in Part III. Vide Shambhu Nath Sarkar v. The State of West Bengal(1) and Khudiram Das v. The State of West Bengal & ors.(2). It was contended by Mr. Jethmalani on behalf of some of the detenus that when a Presidential order suspends enforcement of the right conferred by Art. 21, its effect is merely to suspend enforcement of the aforesaid two ingredients and, therefore, the only claims which a detenu is interdicted from enforcing, whilst the Presidential order is in operation, are: ([197 .....

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..... capable of enforcement even when enforcement of Article 21 is suspended by the Presidential order. The Great Charter of Liberties of England, commonly known as the Magna Carta, was granted under the seal of King John in the meadow called Runnymede on 15th June, 1215. This was followed within a couple of years by a revised version of the Charter which was issued in the name of Henry III in 1217 and ultimately with slight amendments, another Charter was re-issued by Henry III in 1225 and that document has always been accepted as containing the authorised text of Magna Carta. Whenever reference is made to Magna Carta, it is to the Charter of 1225. which is also described as "9 Henry III (1225)". Magna Carta, according to Sir Ivor Jennings symbolises "what we should now call the rule of law, government according to law or constitutional government" which means that all power should come from the law and that "no man, be he king or minister or private person is above the law". It recognised that "the liberties of England, which means the liberties of all free mendepended on the observance of law by King, lord and commoner alike", and "without law there is no liberty". Cap. XXIX contai .....

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..... liberty of a subject unless such interference is sanctioned by the authority of law was thus restored in its full vigour. Blackstone in his Commentaries on the Laws of England, vol. 1, 4th ed. p. 105 stated the principle in these terms: E              "-the law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct, for imprisonment or restraint, unless by due course of law- It cannot ever be abridged at the mere discretion of the magistrate, without the explicit per mission of the laws. Here again, the language of the Great Charter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land." (emphasis supplied) Since then, the validity of this principle has never been doubted and the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi (Eleko) v. Officer Administering the Government of Nigeria (supra) where the learned La .....

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..... were referred to with approval by Bose and Sen, JJ. It was also accepted by a Division Bench of the Calcutta High Court consisting of Malik and Remfry, JJ. in Jitendranath Ghosh v. The Chief Secretary to the Government of Bengal(I. L. R. 60 Cal. 364 at 377) that " in accordance with British jurisprudence, and with the jurisprudence of British India, no member of the excutive can interefere with the liberty or property of a British subject, or of a foreigner in our land, except on the condition that he can, and, if duly called upon, must support the legality of his action before a court of justice". The Division Bench pointed out that "the courts can, and in a proper case must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the legislature, Eshugbayi Eleko's case". Ameer Ali, A.C.J., and S. R. Das, J. also quoted with approval in re : Banwarilal Roy ((48 Cal. Weekly Notes 766 at 780) the aforesaid passage from the judgment of Lord Atkin in Eshugbayi Eleko's case (supra) and relied on the decision in Jitendranath Ghosh's case (supra) and particularly the observations from the judgment in that case which I have just repro .....

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..... ental sight and enacted as such in Article 21, it is difficult to comprehend how it could continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture. l fail to see how it could continue in force under Article 372 when it is expressly recognized and embodied as a fundamental right in article 21 and finds a place in the express provisions of the Constitution. Once this principle is recognised and incorporated in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State. This position indeed become incontrovertible when we notice that, while recognising and adopting this principle of rule of law as a fundamental right, the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A, clauses (1) and (1A). When the constitution makers have clearly intended that this right should be subject to the limitation imposed by Article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same ri .....

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..... nd it does not exist as a distinct and separate principle conferring a right of personal liberty, independently and apart from that Article. Consequently, when the enforcement of the right of personal liberty conferred by Article 21 is suspended by a Presidential order, the detenu cannot circumvent the Presidential order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of rule of law. It was also said on behalf of the detenus that under our constitutional set up, the executive is bound to act in accordance with law and this obligation of the executive arises from the very basis of the doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73, 154 and 256 of the Constitution. This obligation, contended the detenus, could be enforced against the executive under Article 226 by issue of a writ "for any other purpose". Now, it is true that under our Constitution, the executive is a limited executive and it is bound to act in accordance with law and cannot disobey it. If the Maintenance of Internal Security Act, 1971 says that the executive shall .....

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..... itutional provision inter alia in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential order, it is difficult to see how the intention of the constitutionmakers can be allowed to be defeated by holding that this obligation exists independently of article 21 and it can be enforced despite the limitation imposed by the constitutional provision The same reasoning which I have elaborated in the preceding paragraph would equally apply to repel the present argument. Before I go to the decided cases, I must refer to one argument which strongly supports the view I am taking. It is almost conclusive. It is an argument for which I must express my indebtedness to Prof. P. K. Tripathi. In an article written on 'Judicial and Legislative Control over the Executive during Martial Law' and published in the Journal Section of All India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential order mentioning Article 21 takes away, wholly and completely, the right of an individual to obtain a writ of habeas corpus challenging the legality of .....

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..... ia. What are the legal implications and consequences of declaration of martial law is not provided any where in the Constitution. It is, therefore, obvious that merely declaring martial law Would not, by itself, deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to lie and liberty. In our country, unlike England, the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcement of this right is also guaranteed as a fundamental right. Also the power to issue a writ or order in the nature of habeas corpus has been expressly conferred of the High Courts by a constitutional provision, namely, Article 226. Therefore, the declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and, unless the right of an individual to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution, the individual would be entitled to enforc .....

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..... n of martial law does not, under our Constitution, have the effect of taking away that power. That would be plainily an insufferable situation which would carry the power of courts even beyond that claimed by the United States courts in the case of the ex parte Milligan(') which case went to the farthest limit and which has for that reason been criticised by great authorities like E. S. Corwin and has not been consistently followed even by the United States Supreme Court Vide Moyer v. Peabody(2) and Duncan v. Kohanmeku.(3) There can be no two opinions that during martial law the courts cannot and should not have power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including the ground of mala fide. But, if the courts are to be prevented from exercising such power during martial law, that situation call be brought about only by a Presidential order issued under Article 359, clause (1) and in no other way and the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge to the legality of detention in any court, including the S .....

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..... anner and subject to the limitations and provisions contained in the statute, they can only be so exercised. otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disrgard them and fall back on prerogative ?", and pointed out that the question posed by the Maqster of the Rolls was unanswerable. The learned Law Lord then proceeded to add:                "It is quite obvious that it would be useless and meaning less for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do." The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches. Now it is obvious that the contention of the detenus in the present case is very similar to that advanced on behalf of the Crown in De Keyser's Royal Hotel's case (supra). It almost seems to be an echo of that contentio .....

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..... titioner relied on the words " is inconsistent with or takes away or abridges any rights conferred by any provisions" of Part III and contended that inconsistency with or taking away or abridgement of the right conferred by s. 299, sub-s. (2) of the Government of India Act, 1935 was not within the protection of Art 31-B. This contention of the petitioner was negatived and it was held by this Court speaking through Jagannatha Das, J.:             "When Article 31-B protects is not a mere "contravention of the provisions" of Part III of the Constitution but an attack on the grounds that the impugned Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part." one of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a'law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under section 299 of the Government of India Ac .....

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..... Mysore ([1969] 3 S. C. R. 1). The argument which was advanced in that case was that the existence of public purpose and the obligation to pay compensation were necessary concomitants of compulsory acquisition of private property and so the term 'acquisition' in Entry 36 of List II of the Seventh Schedule to the Constitution must be construed as importing by necessary impliction the two conditions of public purpose and payment of adequate compensation, and consequently, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of the rights of the inamdars in inam estates in Mysore State without payment of just and adequate compensation was beyond the legislative competence of the State Legislature. This argument was rejected on the ground that the limitations of public purpose and payment of compensation being expressly provided for as conditions of acquisition in Article 31 (2), there was no room for implying either of these limitations in the interpretation of the term 'acquisition' in Entry 36 of List II. Ramaswamy, J., speaking on behalf of the Court observed- G              "It .....

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..... , these rights cannot be found elsewhere than in the Constitution. The decision of the High Court of Justice in Ireland in 'State (Walsh and others) v. Lennon and others"(1) has also adopted the same view. The petitioners in this case, who were detained in Arbour Hill Military Detention Barracks awaiting trial on a charge of murder before a Military Court established under Emergency Powers (No. 41) order, 1940, made an application to the High Court for an order of habeas corpus directed to the Governor of the Detention Barracks in which they were held and for an order of prohibition directed to the President and members of the Military Court before whom it was ordered by Emergency Powers (No. 41F) order, 1941 that they should be tried. The application inter alia challenged the validity of the Emergency Powers (No. 41 F) order, 1941 on the ground that it was ultra vires the Government, as it directed that the Military Court, which was to try the petitioners. should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be tried on a criminal charge sav .....

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..... n the law then in force.' " I do not find in the judgment of Murnaghan J. Or elsewhere in the judgments in that case any basis for the contention that these rights are to be found in a body of principles which exist side by side with the written Constitution having their source in the Common Law, and of equal validity with the principles stated in the Constitution, and which on the argument here, would have the added virtue that they are uncontrolled by Art. 28, s. 3 sub-s. 3. The constitutional rights relied upon in this case find clear expression in Article 40 and 38 of the Constitution. In my view they cannot be found elsewhere than in the Constitution. The advantages of a written Constitution are manifest. Such a Constitution can, and our Constitution does, give rights such as these definite and clear expression. Our Constitution can, and does, protect them against being whittled away save with great difficulty. The framers of the Constitution have provided that, after the passage of a limited time, many, though not all of the rights which it gives are put beyond the reach of interference by ordinary law. The framers have however, deliberately inserted Art. 28, s. 3, sub-s. 3, .....

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..... ll be seen that there is a close analogy between this decision of the High Court and the present case and the observations of the three judges quoted above are directly applicable here. The detenus, however, strongly relied on the decisions of this court in Bharat Singh's case (supra), Ibrahim & Co.'s case (supra) Bennet Coleman & Co.'s case (supra) and Shree Meenakshi Mills' case (supra) in support of their contention that the principle of rule of law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent principle unaffected inter alia by the enactment of Article 21. I have already referred to these decisions earlier and it will be evident from what l have said, that these decisions do not lay down any such proposition as is contended for on behalf of the detenus. What these decisions say is only this, namely, that Article 358 protects against challenge under Article 19 only such executive action ac is taken under lawful authority and if any executive action is taken without authority of law or. in pursuance OF a law which is void, it will not he protected from challenge under Article 19 by Article 3 .....

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..... will be noticed that the impugned order operated to the prejudice of the petitioner by affecting his rights under section (1) and (2) of Section 64 but it did not affect any of his rights under Article 19 or Article 21 or clause Cl) of Article 31 and therefore, the principle of rule of law that the executive cannot act to the prejudice of a person without authority of law could by legitimately invoked. It continued to be in law in force to the extent to which it was not recognised and enacted in any provision of the Constitution. The next decision to which I must refer in this connection is Bishan Das & Ors v. The State of Punjab [1962] 2 S. C. R. 69. This was a petition under Article 32 of the Constitution and the action of the officers of the State Government impugned in this case was forcible dispossession of the petitioners of properties which were in their management and possession. The challenge to the impugned action of the officers of the State Government was based on violation of the fundamental right guaranteed under clause (1) of Article 31. This Court upheld the challenge and struck down the impugned action as being without the authority of law and while doing so. made .....

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..... n Eshugbayi Eleko's case (supra) had been adopted in this country. He did not make it clear how it had been adopted nor did he say that it had been adopted as a distinct and independent principle apart from the fundamental rights. There can be no doubt that the principle in Eshogbayi Eleko's case (Supra) had been adopted in this country in Article 21 to the extent to which it protects personal liberty. I will, therefore, be seen that there is no decision of this Court which says that there is a right of personal liberty based on the rule of law distinct and independent from that guaranteed by Article 21. I must now turn to the decision of this Court in Makhan Singh v. State of Punjab (supra) on which very strong reliance was placed on behalf of the detenus. That was a decision given in a batch of twenty-six appeals from the decisions of the High Courts of Bombay and Punjab. The appellants in these six appeals were detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(i)(b) of the Defence of India Rules made by the Central Government in exercise of the powers conferred on it by s. 3 of the Defence of India ordinance, 1962. They applied to the Punja .....

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..... tion when lt 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 any of the said specified fundamental right" Having thus disposed of the first question, the majority judgment went on to consider the second question and after analysing the nature of the proceedings under s. 491(1)(b) of the Code of Criminal Procedure, held that the prohibition contained in Art. 359, clause (1) and the Presidential order would apply "as much to proceedings under s. 491 ( 1 ) (b) as to those under Art. 226(1) and Art. 32 (1)". It was obvious that on this view, the petitions under s. 491(1)(b) were not maintainable" since the only ground on which they challenged the orders of detention was that the provisions of s. 3(2)(15)(i) as well as rule 30(l)(b) were invalid as offending against Articles 14, 21 and 22 and in the circumstances it was not necessary for the.; Court to express any opinion on the questions to what were the pleas available to a citizen under the Presidential order in challenging the legality or propriety of his detention. Still however, the majority judgment proceeded to give .....

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..... is in violation of the mandatory provisions of the Act or is made malafide, such a plea would be outside Art. 359, clause (1) and would not be barred by a Presidential order specifying Art. 21. The detenus, in support of this contention leaned heavily on the words 'such a plea is outside Art. 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order", and "that is another kind of plea which is outside the purview of Art. 359(,1)" occurring in these observations and urged that such a plea was held to be permissible because it was outside the purview of Art 359, clause (1) and not because it was outside the terms of the particular Presidential order. Now, at first blush, these observations do seem to support the contention of the detenus. But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us. In the first place, the questions to what were the other pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential order dated 3rd November, 1962, was not in issue before the Court and did not .....

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..... red mala fide, such a plea would not fall within the terms of the Presidential order and hence it would be outside the purview of Art. 359, clause (1). That is the only way in which these observations can and must be understood. It was pointed out by the House of Lords as far back as 1901 in Queen v. Leatham([1901] A. C. 495) "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts in which such expressions are to be found." This Court had also occasion to point out in the State of Orissa v. Sudhansu Sekhar Misra([1968] 2 S. C. R. 154) that the observations in a judgment must be "only in the context of the question that arose for decision." It would not be right, as observed by this Court in Madhav Rao v. Union of India (supra), "to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition on the law on a question" particularly "when the question did not even fall to be answered in that judgmen .....

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..... vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential order, because, in terms, it is not a plea which is relateable to the fundamental rights specified in the said order. Let us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who is detained under an order passed under Rule 30(1) (b), contends that the said order has been passed by a delegate outside the authority conferred on him by the appropriate Government under s. 40 of the Defence of India Act, or it has been exercised, inconsistently with the conditions prescribed in that behalf., a preliminary bar against the competence or the detenu's petition cannot be raised under the Presidential order, because the last clause of the Presidential order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Presidential order, the bar created by it cannot be successfully invoked against cl decided. Therefore, our conclusion is that the learned Additional Solicitor-General is not justified in contending that the present petitions are incompetent un .....

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..... e and enforceability of natural rights. But this contention of the detenus is clearly belied by the observation from the judgments of at last seven of the judges who decided Kesavanand Bharati's case (supra). Ray, C. J. said at pages 419 of the Report: "Fundamental rights are conferred by the Constitution. There are no natural rights under our Constitution." Palekar, J., also said at page 594 of the Report: "The so called natural rights-have in course of time lost their utility as such in the fast changing world and are recognised in modern political constitutions only to the extent that organised society is able to respect them." So also Khanna, J. said at page 703 of the Report: "- the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the State. It is up to the State to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution of the laws made by it. But independently of the constitution and the laws of the State, natural rights can have no legal sanction and cannot be enforced." Mathew, J., too, spoke to the sam .....

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..... nternal Security Act, 1971 enacts that no person in respect of whom an order of detention is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law. if any. The Indian Panel Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law. But it can hardly be said on that acount that section 342 of the Indian Penal Code confers a right of personal liberty. The utmost that can be said is that this section proceeds on a recognition of the right of personal liberty enacted in Article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision. Then I must refer to one other contention of the detenus and that is that the remedy under Article 226 can be invoked not only for the purpose of enforcement of the fundamental rights, but also "for any other purpose". These words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the detention of a .....

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..... r. It is necessary to point out that Art. 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful. There can be no doubt that the executive is bound to act in accordance with law and cannot that the command of law. The executive cannot also act to the detriment of a person without authority of law or except in accordance with law. If the executive takes any action which is not supported by law or is contrary to law, its action would be unlawful.. This unlawful characteristic of the action is not obliterated by the Presidential order issued under Art. 359 clause (1). Article 359, clause (1) and the Presidential Order issued under it do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law They merely suspend the right of a person to move any court for redress against the unlawful action of the executive, if his claim involves enforcement of any of the fundamental rights specified in the Presidential order. This is a position akin in some respects to that in the United States when the .....

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..... t would not be within the inhibition of a Presidential order issued under Article 359, clause(1). Take for example the class of cases of detention where no declaration has been made under sub-sections (2) and (3) of section 16A. This category would cover cases where orders of detention have been passed prior to June 25, 1975, because in such cases no declaration under subsections (2) or (3) of section 16A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June, 1975 without a declaration under sub-section (2) or sub-section (3) of section 16A. Sections 8 to 12 would continue to apply in such cases and consequently the detaining authority would be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu, the State Government would be bound to revoke the detention order and release the detenu. 'That is the plain requirement of sub-section (2) of section. Now? suppose that in such a case the State Government fails to revoke the detention order and release the detenu in breach of its st .....

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..... take still another example to illustrate the point I am making. Take a case where an order of detention has been made without a declaration under subsection (2) or sub-section (3) of section 16A). Sections 8 to 12 would admittedly apply in such a case and under s. 8, A the detaining authority would be bound to communicate to the detenu the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate government. If, in a given case, the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation, in violation of the statutory right conferred on him under s. 8, can be detenu not enforce this statutory right by filing a petition for a writ of mandamus against the detaining authority ? Would it be any answer to such an application that the enforcement of the fundamental right conferred by Art. 22, clause (5) has been suspended by the Presidential order? The answer is plainly: no. There are two rights which the detenu has in this connection: one is the fundamental right conferred by Art. 22, clause (5) and the other is the stat .....

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..... ld have to see whether the order of detention is one made by an authority empowered to pass such an order under the Act; if it is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21. On this view in regard to the interpretation of the constitutional provision, it is unnecesasry to go into the question of construction and validity of section 18 of the Act. It was strongly urged upon us that if we take the view that the Presidential order bars the right of a person to move a court even when his detention is otherwise than in accordance with law, there would be no remedy against illegal detention. That would encourage the executive to disregard the law and exercise arbitrary powers of arrest. The result would be-so ran the argument-that the citizen would be at the mercy of the executive: every one would be living in a state of constant apprehension that he might at any time be arrested and detained: personal liberty would be at an end and our cherished values destroyed. Should we accept a construction with such fearful consequences was the question posed before us. An impassioned appeal was made to us to save person .....

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..... ng a Government A waging total war must apply equally in relation to a Government engaged in meeting internal subversion or disturbance, for the two stand on the same footing, so far as our Constitution is concerned. Now, when vast powers are conferred on the executive and judicial scrutiny into the legality of exercise of such powers is excluded" it is not unlikely that illegalities might be committed by the executive in its efforts to deal with the crisis situation. Dicey, in his "Introduction to the study of Law of the Constitution" frankly admits that it is "almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the Government to keep suspected persons in a prison for a length of time without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not be the members of Ministry themselves, it any rate by their agents." But howsoever unfortunate this situation might be, that cannot be helped. The Constitution permits judicial scrutiny to be barred during times of emergency, because it holds that when a crisis arises in the life of the nation, the rights of individuals must be postponed to considerations of State .....

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..... o it. Sitting as l do, as a Judge under the constitution, I cannot ignore the plain and emphatic concerned of the Constitution or what I may consider to be necessary to meet the end of justice. It is said that law has the feminine capacity to tempt each devotee to find his own image in her bosom. No One escapes entirely. Some yield badly, some with sophistication. Only a few more or less effectively resist. I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at is altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me W allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear. I cannot assume to myself the role of Plato's Philosopher king's in order to render what I consider ideal justice between the citizen and the State. After all" the Constitution is the law of all laws and there alone judicial consci .....

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..... t into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating The order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has any occasions point out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the Act. Vide Naranjan Singh v. State of Madhya pradesh,(1) Saikh hanif, Gudma Majhi & Kamal Saha v. State of West Bengal (2) and Dulal Roy v. The District Magistrate, Burdwan ors.(3) . It has also been insisted by this court that, in answer to the Rule, the detaining authority must place all the relevant facts before the Court which would show that the detention is in accordance with the detention is in accordance the provisions of the Act. It would be no argument on the part of the detaining authority to say that particular ground .....

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..... vious decisions has been considered and the law has been summarised at pages 843 to 845 of the Report in a judgement delivered by me on behalf of the Court. I have carefully listened to the most elaborate arguments advanced before us in this case and even after giving my most serious consideration to them, I still adhere to all that I said in Khudiram Das's case (supra). I maintain that the subjective satisfaction of the detaining authority is liable to be subjected to judicial scrutiny on the grounds enumerated by me in Khudiram Das's case (supra) and the decision in Khudiram Das's case(supra) lays down the correct law on the subject. The only question is: how far and to what extent sub-section (9) (a) of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid piece of legislation. Now the first question that arises for consideration is as to what is the correct interpretation of section 16A, sub-section (9) (a). That sub-section reads as follows:-               "(9) Notwithstanding anything contained in any other law or any rule having the force of law- (a) the grounds on which al .....

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..... ce the narrower construction must be preferred which excludes the High Court from the purview of the subsection. This contention, attractive though it may seem because it has the merit of saving judicial scrutiny from being rendered ineffectual and illusory, is not justified by the plain language of sub-section (9) (a) of section 16A and hence, despite these weighty considerations which have been pointed out on behalf of the detenus, I find myself unable to accept it. It is true that sub-section (9) (a) of section 16A does not specifically refer to any court. It does not say in so many terms, as did section 54 of the Indian lncome-tax Act, 1922, that no court shall require any officer to produce before it the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is based, nor does it contain any provision, like section 14 of the Preventive Detention Act, 1950 that no court shall allow any statement to be made or any evidence to be given of such grounds, information and materials. But there is inherent evidence in the sub-section itself to show that it is intended to prevent disclosure of such grounds .....

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..... roceed to state, I do not think it is well founded. There can be no doubt that Article 226 is a constitutional pro vision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the fundamental right conferred by Article 21 and also for any other purpose. The High Court has, therefore, constitutional power to examine the legality of detention and for that purpose, to inquire and determine whether the detention is in accordance with the provisions of law. Now, obviously this being a constitutional power, it cannot be taken away or abridged by a legislative enactment. If there is any legislative provision which obstructs of retards the exercise of this constitutional power, it would be void. There arc several decisions of this Court which recognise and lay down this proposition. It was said by this Court in one of its early decisions in Hari Vishnu Kamath v. Syed Ahemad Ishaque & ors.( [1955] 1 S. R. 1104) that the jurisdiction under Article 226 having been conferred by the Constitution, limitation cannot be placed on it except by the Constitution itself So also n Durga Shankar Mehta v. Thakur Raghuraj singh & ors.( [1955] 1 S. C. R. 267) this Court, while .....

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..... en Dutta & ors v. Chief Com missioner of Tripura & Anr.( [1964] 8 S, C. R. 295) There, an interim order was made by this Court "directing that the Chief Secretary to the Tripura Administration shall forthwith transmit to this Court the original file in respect of the detenus concerned" since the Court wanted to satisfy itself that the Minister or the Secretary or the Administrator had reviewed the cases of the detenus and arrived at a decision that their detention should be continued. So also in M. M. Damnoo v. J & K State ([1972 2 S. C. R. 1014) this Court required the State Government to produce the file confining the grounds of detention so that the Court could satisfy itself That "the grounds on which the detenu has been detained have relevance to the security of the State". It would, therefore, be seen that if there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the Court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offe .....

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..... eat force in this contention- The argument (of the Attorney General) overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. An examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory. It follows that section 14 contravents the provisions of article 22 (S) and article 32 in so far is it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or . the representation made by him against the order of detention, and prevents the Court from examining them for the purpose aforesaid. and to that extent it must be held under article 13 (2) to be void." (emphasis supplied). And so did the other learned Judges. It is clear from what they said that inasmuch as section 14 prohibite .....

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..... n regard to section 14 of the Preventive Detention Act, 1950 said:                "But fortunately there is no similar provision in this Act: and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law. If it were not so, we would have difficulty in sustaining the proviso." It will, therefore, be seen that prima facie this Court was of the view that if the proviso to section 8 had debarred the High Court and this Court from requiring the grounds of detention to be produced before them, it would have been difficult to sustain that proviso. The learned Additional Solicitor General, however, sought to distinguish' these two decisions and contended that sub-section (9) (a) of section 16A merely enacts a rule of evidence and it cannot, therefore, be said to obstruct or retard the exercise of the constitutional power of the High Court under Article 226 so as to be in conflict with that Article. Now .....

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..... rest to disclose. But in substance and effect, is it a genuine rule of evidence ? The argument on behalf of the detenus was that it is only a legislative device adopted by the legislature for the purpose of excluding the grounds, information and materials from the scrutiny of the Court and thereby making it virtually impossible for High Court to examine the legality of the detention and grant relief to the detenu. If the veil is removed, contended the detenus, the position is no different from that obtaining in A. K. Gopalan's case (supra) where section 14 of the Preventive Detention Act, 1950 was struck down as constituting a direct assault on Article 226. It was pointed out that, in every case of detention, the Grounds, information and materials would not necessarily refer to, matters of State and be against the public interest to disclose. Since, even order of detention purported to be made under section 3 are brought within the purview of sub-section (9)(a) of section 16A, the grounds, information and materials in cases of such detention may be wholly unrelated to the objects and purposes set out in section 3 and in that event, they would mostly have nothing to do with matters .....

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..... able to assume that where a person is detained is order to deal effectively with the emergency, the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is based would. and large, belong to a class of documents referring to matters of State which it would be against public interest to disclose. What was observed by two of the Law Lords in Liversidge's case (supra) would be applicable in such a case. Viscount Maugham said at page 221 of the Report. "-it is obvious that in many cases he will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed in court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm-It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature," and Lord Wright also observed to the same effect at page 266 of the Report:              "In these case .....

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..... . M. Damnoo's case (supra) that if the proviso to section 8 had debarred the High Court and this Court from calling for the grounds of detention and looking into them, it would have been difficult to sustain that proviso. But here, on account of the declaration under sub-section (2) or sub-section (3), which, as I said above, must be a valid declaration in order to attract the applicability of sub-section (9) (a) of section 16A, the grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in the sub-section genuinely partakes of the character of a rule of evidence. It may be pointed out that if the declaration A under sub-section (2) or sub-section (3) is invalid sub-section (9) (a) of section 16A will not be attracted and the grounds, information and materials on which the order of detention is made would not be privileged under that sub-section. I am, therefore, of the view that sub-section (9) (a) of section 16A enacts a genuine rule of evidence an it does not detract from or affect the jurisdiction of the High Court under Article 226 and hence it cann .....

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