Makhan Singh vs State of Punjab (And Connected Appeals)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 02/09/1952

Coram: Gajendragadkar, P.B., Sarkar, A.K. Subbarao, K. Wanchoo, K.N. Hidayatullah, M. Gupta, K.C. Das Shah, J.C.

In this case, the petition of Makhan Singh against the State of Punjab and connected appeals was decided by the Supreme Court of India on 2 September 1952. The bench that heard the matter consisted of Chief Justice Gajendragadkar, Justice P. B. Gajendragadkar, Justice S. Sarkar, Justice A. K. Subbarao, Justice K. Wanchoo, Justice K. N. Hidayatullah, Justice M. Gupta, Justice K. C. Das Shah and Justice J. C. The judgment was reported in the 1964 All India Reporter (page 381) and also in the Supreme Court Reports, volume 4, page 797, and it has been cited in several subsequent reports.

The appellants, Makhan Singh and others, had been detained under rule 30(1) of the Defence of India Rules, which were promulgated by the Central Government pursuant to section 3 of the Defence of India Ordinance, 1962. They subsequently filed applications before the Punjab and Bombay High Courts invoking section 491(1)(b) of the Code of Criminal Procedure, seeking their release. Their principal contentions were that sections 3(2)(15)(i) and 40 of the Defence of India Act, 1962, together with rule 30(1)(b) of the Defence of India Rules (which had been incorporated into the Act), were unconstitutional because they infringed the fundamental rights guaranteed under articles 14, 21, 22(4), 22(5) and 22(7) of the Constitution of India. Accordingly, they argued that they should be set at liberty.

Both High Courts rejected the petitions, holding that a Presidential Order dated 3 November 1962, issued under article 359(1) of the Constitution after a proclamation of emergency under article 352 in view of the Chinese invasion of India, barred the appellants from moving the courts for enforcement of the specified rights. The order expressly suspended the right to approach any court for the enforcement of article 21 and article 22, and it was later amended to include article 14.

The Supreme Court was therefore called upon to resolve two common questions: first, what was the true scope and effect of the Presidential Order issued under article 359(1); and second, whether the bar created by that order extended to applications filed under section 491(1)(b) of the Code of Criminal Procedure. The President’s order read as follows: “G.S.R. 1464—In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the right 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 26 October 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (Act 4 of 1962) or any rule or order made thereunder.” By a subsequent amendment, article 14 was incorporated into the same order.

The Court held that the proceedings instituted by the appellants in the High Courts under section 491(1)(b) of the Code of Criminal Procedure were affected by the Presidential Order and therefore had to be declared incompetent. It observed that Article 359 of the Constitution could not be given two divergent constructions; consequently, there was no need to resolve the dispute raised by the parties as to whether the article should be interpreted in favour of the President’s power or in favour of the fundamental rights of citizens. In arriving at this conclusion, the Court considered several earlier decisions, namely The King (At the Prosecution of Arthur Zadig) v. Halliday [1917] A.C. 260, Liversidge v. Sir John Anderson [1942] A.C. 206, Keshav Talpade v. The King Emperor [1943] F.C.R. 49, Nakkuda Ali v. M. F. De S. Jayaratne [1951] A.C. 66 and King Emperor v. Vimalabal Deshpande, L.R. 731 A. 144. The Court explained that the words “any court” in Article 359(1), read in their ordinary grammatical sense, must be understood to mean any court of competent jurisdiction, which includes the Supreme Court as well as the High Courts before which the rights specified in the Presidential Order may be enforced. It rejected the argument that the expression must be read broadly to embrace other courts that could be empowered under Article 32(3), and also dismissed the contention that a High Court could be excluded because its power to issue a writ under Article 226(1) is discretionary. The Court stressed that, in determining whether a particular proceeding falls within the scope of the Presidential Order, the decisive factor is not the formal label or the terminology used for the relief, but the substantive nature of the proceeding. If, in granting the relief, the court is required to consider whether any of the fundamental rights mentioned in the Presidential Order have been violated, then the proceeding is covered by the Order, irrespective of whether it is pursued under Article 32(1) or Article 226(1) of the Constitution. The Court further observed that the right to move a court for a writ of habeas corpus under section 491(1)(b) of the Code of Criminal Procedure has become a statutory right and can no longer be claimed under the common law, relying on authorities such as Girindra Nath Banerjee v. Birendra Nath Pal I.L.R. 54 Cal. 727, District Magistrate, Trivandrum v. K. C. Mammen Map-pillai I.L.R. [1939] Mad. 708, Matthen v. District Magistrate, Trivandrum L.R. 66 I.A. 222 and King Emperor v. Sibnath Banerji L.R. 72 I.A. 241. The Court noted that since the Constitution came into force, a citizen could enforce his personal liberty either by a writ under Article 226(1) or Article 32(1), or by invoking section 491(1)(b) of the Code of Criminal Procedure. Whichever method is chosen, if the right sought to be enforced is a fundamental right guaranteed by the Constitution, the matter falls within Article 359(1). The Court held that the court’s power under section 491(1)(b) to act suo motu makes no difference, and that Articles 372, 225 or 375 cannot provide a valid basis for contesting the effect of the Presidential Order.

In the present matter the Court held that the Presidential Order that suspended the power to approach any court inevitably suspended the jurisdiction of the courts in the same manner. The right to contest a detention order under section 491(1)(b) of the Code of Criminal Procedure had been expanded by the guarantees of fundamental rights contained in the Constitution, and when a detainee relied on that provision in his petition he was, in effect, seeking to enforce a constitutional right. Consequently the prohibition contained in article 359(1) of the Constitution and the Presidential Order applied to such a petition. The expression “right to move any court” in article 359(1) and in the Presidential Order was interpreted to cover every legal action, whether already filed or yet to be filed, in which the specified constitutional rights were alleged to be infringed; it therefore embraced all categories of jurisdiction of competent courts that would ordinarily entertain and try such actions. The Court cited the decision in Sree Mohan Chowdhury v. Chief Commissioner, Union Territory of Tripura for this principle. Even assuming that the Act under challenge was invalid because it contravened articles 14, 21 or 22, as the appellants alleged, that invalidity could not be raised during the period prescribed by the Presidential Order, nor could it be argued that the President was powerless to issue the order on that ground. The Court further observed that if a detainee’s challenge was based on a right not enumerated in the Presidential Order, the suspension of the “right to move any court” could not be invoked, because such a right lay outside the scope of article 359(1). Likewise, if the detention was attacked on the basis that it violated mandatory provisions of the relevant statute, or was shown to be mala fide, and the case fell within the other categories of section 491(1) of the Code except for subsection (1)(b), the bar created by the Presidential Order did not apply. The plea that the operative provision of the law under which the detention order was made suffered from excessive delegation was treated as an independent ground, unrelated to the constitutional rights mentioned in the Presidential Order, and therefore required a separate examination. The Court rejected the contention that sections 3(2)(15)(i) and 40 of the impugned Act were invalid for excessive delegation, noting that the legislative policy was clearly set out in the preamble and that sections 3(1) and 3(2) provided detailed and specific guidance to the rule-making authority, so the Act did not delegate essential legislative functions. In the same vein, Rule 30(1)(b), which was consistent with the substantive provisions of the Act, could not be struck down on the ground of excessive delegation. The Court relied on earlier authorities, namely The Delhi Laws Act, 1912 case, Harishankar Bagla v. State of Madhya Pradesh and Bhatanagars and Co. Ltd. v. Union of India, to support its reasoning. Finally, the Court concluded that the impugned Act could not be declared a piece of colourable legislation merely because the Preventive Detention Act of 1950 already existed, and that the existence of that earlier statute precluded the allegation of colourable legislation.

The Court noted that the Preventive Detention Act of 1950 was already part of the statutory scheme when the legislation under review was enacted. It observed that Parliament possessed legislative authority under Entry 9 of List I in the Seventh Schedule of the Constitution. Consequently, if Parliament, faced with a serious threat to the security of India, chose to pass the new Act, such a decision could not be characterised as dishonest or malicious. The Court further explained that, should Parliament have believed that the executive would be unable to detain individuals reasonably suspected of activities prejudicial to the nation by relying solely on the Preventive Detention Act of 1950—an Act that incorporated the constitutionally required safeguards—then the enactment of a new statute lacking those safeguards could not, in itself, be said to demonstrate bad faith. Even assuming that the impugned Act breached Articles 14 and 22 and that the detentions effected under it were void, the Court held that Article 359(1) of the Constitution together with the Presidential Order issued under that provision were expressly intended to address such circumstances. Those provisions, the Court said, barred any substantive examination of the validity of the detentions for the period specified in the Order. The proceeding invoked under section 491(1)(b) of the Code of Criminal Procedure, the Court explained, is a single-track proceeding whose only permissible relief is the release of the detainee. If that relief is unavailable because of the Presidential Order, it would be unreasonable to permit a mere declaration that the Act and the ensuing detentions are invalid. Such a declaration, the Court stressed, lies outside the scope of section 491(1)(b) of the Code as well as outside the jurisdiction conferred by Articles 226(1) and 32(1) of the Constitution.

The Court further observed that the duration of the emergency and the restrictions to be imposed during its continuance are matters that necessarily belong to the executive branch. It emphasized that, in a democratic polity, the principal safeguard against the abuse of power—whether in times of peace or emergency—is an enlightened, vigilant, and vocal public opinion. Referring to Liversidge v. Sir John Anderson, [1942 1 A.C. 206], the Court affirmed that the inviolability of individual liberty and the supremacy of the law are both protected by the Constitution, which assigns the Supreme Court the role of guardian of fundamental rights while also providing for the declaration of an emergency. Accordingly, the Court held that when a citizen seeks to challenge the legality of his detention, effect must be given to Article 359(1) and to the Presidential Order made under that article. The right specified in Article 359(1) includes both constitutional and constitutionally guaranteed rights, and the phrase “any court” therein must be interpreted to encompass both the Supreme Court and the High Courts. In this context, the Court affirmed the correctness of the decisions of the Punjab and Bombay High Courts, which had dismissed applications under section 491(1)(b) of the Code on the ground that they attempted to question the validity of detentions on the basis that the Act and its Rules violated Articles 14, 21 and 22(4)(5)(7) of the Constitution. Per Justice Subba Rao, it was clear that section 3(2)(15)(i) of the Defence of India Act, 1962, and rule 30(1)(b) made under that Act, contravened the relevant provisions of the Constitution.

The Court observed that the provisions of the Constitution identified as clause 22 were held to be void. In arriving at this conclusion, the Court referred to several earlier decisions, namely Deep Chand v. The State of Uttar Pradesh [1959] Supp. 2 S.C.R. 840, Mahendra Lal v. State of U.P. A.I.R. 1963 S.C. 1019, and A. K. Gopalan v. State of Madras [1950] S.C.R. 88. Under the Constitution, every person possesses the right to approach the Supreme Court, the High Courts, or any other court constituted by Parliament for the enforcement of fundamental rights, as provided in Article 32(3) and subject to the manner prescribed by law. However, the Court pointed out that while the right to move the Supreme Court is a guaranteed constitutional right, the corresponding right to approach the other courts is not guaranteed in the same manner. The Court explained that, when Article 359 is properly construed, the limitation imposed by the Presidential Order under that article extends not only to the guaranteed right of directly approaching the Supreme Court but also to the rights of moving the other courts under Articles 32 and 226. The Court emphasized that no special rule of construction applies solely because the situation involves war measures; the same principles of interpretation apply in both peace and war. The fundamental rule, according to the Court, requires that courts ascertain the legislature’s expressed intention by examining the language of the enactment itself. Words must be given their natural and ordinary meaning unless the language is ambiguous, in which case the court must adopt the meaning that best furthers the legislature’s intention. The Court further held that a constitutional provision such as Article 359 cannot be given a strained construction merely to accommodate a temporary situation like the present emergency. In support of this view, the Court discussed earlier authorities including Rex v. Halliday L.R. [1917] A.C. 260, Liversidge v. Sir John Anderson L.R. [1942] A.C. 206, Nakkuda Ali v. Jayaratna L.R. [1951] A.C. 66, and Gibbon v. Ogden (1824) 6 L. Ed. 23. The Court then turned to Section 491 of the Code of Criminal Procedure, noting that it is broadly worded and confers discretionary power on the High Courts. Unlike the powers under Articles 32 and 226, the exercise of the power under Section 491 is not channeled through procedural writs or orders, and therefore the technicalities of those writs cannot limit the court’s discretion. The Court cited earlier decisions such as Girindra Nath Banerjee v. Birendra Nath Pal (1927) I.L.R. 54 Cal. 727, District Magistrate, Trivandrum v. Mammen Mappillai I.L.R. 1939 Mad. 708, and Matten v. District Magistrate, Trivandrum L.R. (1939) 66 I.A. 222 in support of this view. The Court observed that Section 491 is continued by Article 372 and that Article 225 preserves the jurisdiction of the High Court. The power conferred by Section 491 does not conflict with Articles 32 or 226, nor with any other constitutional provision; consequently, the section cannot be said to have been impliedly superseded, even to the extent that Article 226 empowers the High Court to grant relief in cases of illegal detention. Although the provision is remedial in form, it presupposes a substantive right that no person may be deprived of liberty except in accordance with law. The provision thus assumes the rule of law and authorises the High Court to act suo motu. The Court concluded that the substantive and procedural rights created by Section 491 differ from those conferred under Articles 32 and 226.

The Court explained that Articles 32 and 226 of the Constitution impose on the custodian of a detainee the duty to demonstrate that the detention is lawful. Although a court examining the legality of the detention may have to consider whether the governing law infringes any fundamental rights, such consideration does not transform the proceeding into a suit for the enforcement of fundamental rights. Rather, the decision remains a judgment on the constitutionality of the law on the ground that it infringes fundamental rights in a general sense. The Court further observed that the procedure for approaching the High Court under section 491 of the Code of Criminal Procedure and the type of relief that may be granted under that provision cannot be equated with the procedure and relief available under the Constitution. The absolute discretionary jurisdiction conferred by section 491 is not comparable to the jurisdiction under Article 226, which is limited by constitutional restraints. The Court cited the authorities Alam Khan v. The Crown (1947) I.L.R. 28 Lahore 274, Ramji Lal v. The Crown (1949) I.L.R. 11 E.P. 28, and King-Emperor v. Vimlabai Deshpande (1946) L.R. 73 I.A. 144 in support of this distinction.

The Court then turned to Article 359, stating that while section 491 provides no authority to enforce fundamental rights and functions merely as a check against arbitrary action, Article 359 deals with a constitutional right and its enforcement. Consequently, it would be incorrect to contend that Article 359 would be frustrated if section 491 were to remain in force, because Parliament retains the power to amend that statutory provision at any time. The expression “right to move any court for enforcement of such of the rights conferred by Part III” in Article 359, the Court held, refers exclusively to the right to approach a court under Articles 32 or 226 for the specific relief contemplated by those provisions. That expression cannot be extended to the statutory power exercised by High Courts under section 491 of the Code. Accordingly, the phrase “all proceedings pending in any court for the enforcement of the rights” pertains only to proceedings initiated by exercising the constitutional right to move the court. The Court further observed that, during the period of the Presidential Order, the detainees could not enforce their fundamental rights under Articles 21, 32 and 14; however, this limitation did not diminish the High Court’s authority under section 491. Moreover, the Presidential Order could not prevent detainees from establishing, even under Articles 32(1) and 226, that the detentions were not made under the Defence of India Ordinance or the Act, were beyond the scope of those enactments, exceeded the powers conferred, or were effected mala fide or through fraudulent exercise of authority.

In the concluding part of the judgment, the Court recorded the criminal appellate jurisdiction of the matter. It concerned Criminal Appeal No. 80 of 1963, which was filed by special leave against the judgment and order dated 26 March 1963 of the Punjab High Court in Criminal Miscellaneous No. 186 of 1963. The judgment also listed Criminal Appeals Nos. 86 to 93 of 1963, each filed by special leave against judgments and orders dated 21 February 1963 of the Punjab High Court in Criminal Miscellaneous Nos. 155, 102, 108, 105, 104, 101 and 107 of 1963, together with a judgment and order dated February 1963 of the same High Court.

In this batch of matters, the Court recorded a series of criminal appeals and miscellaneous applications that originated from judgments of the Punjab High Court and the Maharashtra High Court. The list began with Criminal Miscellaneous No. 99 of 1963, followed by criminal appeals numbered 109 to 111 of 1963. The Court also noted appeals that were taken from the judgment and order dated 31 May 1963 of the Maharashtra High Court in criminal applications numbered 217, 218 and 114 of 1963. In addition, the Court included criminal appeals numbered 114 to 126 of 1963, together with further appeals taken from the same Maharashtra High Court judgment dated 31 May 1963 in criminal applications numbered 271, 265, 270, 267, 219, 220, 269, 264, 263, 266 and 273 of 1963. The docket further comprised Criminal Appeal No. 65 of 1963, which was an appeal by special leave from the judgment and order dated 3 April 1963 of the Nagpur Bench of the Maharashtra High Court in Criminal Application No. 11 of 1963. Each of these matters was listed for consideration by the Court in the present hearing.

The parties to these appeals were represented by counsel, with the names of individual advocates omitted and replaced by neutral role descriptions. For the appellant in Criminal Appeal No. 80 of 1963, counsel for the appellant appeared on behalf of the appellant. For the respondent in the same appeal, counsel for the respondent, including the Attorney-General and the Deputy Advocate-General of Punjab, appeared. In Criminal Appeal No. 86 of 1963, counsel for the appellant was present, while counsel for the respondent, again comprising the Deputy Advocate-General of Punjab together with other counsel, represented the respondent. For the group of appeals numbered 87 to 93 of 1963, counsel for the appellants was engaged, and counsel for the respondent—consisting of the Deputy Advocate-General of Punjab and additional counsel—represented the respondent. In Criminal Appeal No. 65 of 1963, counsel for the appellant appeared. In Criminal Appeal No. 109 of 1963, counsel for the appellant also appeared. The record further indicates that counsel for the appellants were engaged in the remaining appeals, while counsel for the respondents, including the Attorney-General, Deputy Advocate-General and other appointed lawyers, represented the opposing side in those matters.

Counsel for the appellants, who appeared in criminal appeals numbered 111 and 114 to 126 of 1963, also represented Detenue-Interveners numbered 12, 14, 16, 18 and 37. Counsel for the respondents appeared for the parties in criminal appeals numbered 65, 109 to 111 and 114 to 126 of 1963. Counsel for Intervener No 1 represented Naunit Lal; counsel for Intervener No 3 appeared on behalf of that intervenor; counsel for Intervener No 4 was also present. Counsel for Intervener No 5 represented the Advocate-General of Madhya Pradesh and another intervenor. Counsel for Intervener No 6 acted for two intervenors, while counsel for Intervener No 7 appeared for the Advocate-General of Rajasthan together with two other intervenors. Counsel for Intervener No 8 appeared on that intervenor’s behalf. Counsel for Intervener No 69 represented a group of seven intervenors, and counsel for Intervener No 70 represented the same seven intervenors. Counsel for Interveners Nos 79 and 80 also appeared. The date of these appearances was 2 September 1963. A dissenting opinion was delivered by Justices P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah, B. Gajendragadkar and J. K. Subba Rao.

The Court noted that the twenty-six criminal appeals had been placed before a special Constitutional Bench because they raised two common and important questions of constitutional law. Nine of the appeals were filed against the judgments of the Punjab High Court, while the remaining seventeen were filed against the judgments of the Bombay High Court. All of the appellants were detenues who had been detained by the governments of Punjab and Maharashtra respectively under Rule 30(1)(b) of the Defence of India Rules, hereinafter called “the Rules”. The Rules had been made by the Central Government exercising the powers conferred on it by section 3 of the Defence of India Ordinance, 1962 (No. 4 of 1962), hereinafter called “the Ordinance”. The detenues had moved the Punjab and Bombay High Courts respectively under section 491(1)(b) of the Code of Criminal Procedure, alleging that their detention was improper and illegal. Their principal contention was that section 3(2)(15)(1) and section 40 of the Defence of India Act, 1962 (No. 51 of 1962), hereinafter called “the Act”, together with Rule 36(1)(b) under which they had been detained, were constitutionally invalid because they violated the fundamental rights guaranteed under Articles 14, 21 and 22(4), (5) and (7) of the Constitution. Accordingly, they sought a decree directing the respective State Governments to release them. The petitions were dismissed on the ground that a Presidential Order issued under article 359 of the Constitution created a bar which precluded the detenues from moving the High Courts under section 491(1)(b) of the Code of Criminal Procedure.

The Court observed that the Constitution establishes a prohibition which prevents the detainees from invoking the jurisdiction of the High Court under section 491(1)(b) of the Code of Criminal Procedure. Consequently, the judgments of the two High Courts that are now before this Court give rise to two common questions of substantial importance. The first question concerns the precise scope and effect of the Presidential Order promulgated under article 359(1). The Court noted that answering this question requires a fair and reasonable interpretation of article 359(1) itself. The second question asks whether the bar created by the Presidential Order issued under article 359(1) extends to applications made by detainees under section 491(1)(b) of the Code. The Court explained that the answer to this second query depends on determining the true character of the proceedings that the detainees have instituted under section 491(1)(b), and examining those proceedings in the light of the effect of the Presidential Order issued under article 359(1). Both the Punjab High Court and the Bombay High Court had decided against the appellants. In contrast, similar petitions filed before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963, namely Sher Singh Negi v. District Magistrate, Kanpur & Anr., resulted in a contrary conclusion, with that Court ordering the release of the detainees who had approached it under section 491(1)(b) of the Code. Because these questions are significant and because the answers rendered by the various High Courts reveal a sharp divergence of opinion, a Special Bench was constituted to consider the present appeals. The Court further indicated that, should the two principal questions be resolved in favour of the detainees, a third issue would arise, namely the validity of the impugned provisions of the Defence of India Act and the corresponding statutory Rules. The Court then recounted the factual background: on 8 September 1962, Chinese forces launched an aggressive attack on India’s northern frontier, creating a serious threat to the nation’s security. In response, on 26 October 1962, the President issued a proclamation under article 352 of the Constitution, declaring that a grave emergency existed because the security of India was endangered by external aggression. On the same day, the President promulgated the Defence of India Ordinance. This Ordinance was subsequently amended by Ordinance No. 6 of 1962, which was promulgated on 3 November 1962. On that same day, the President issued an Order under article 359(1), suspending the citizens’ right to approach any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution for the duration of the emergency proclamation dated 26 October 1962. The Central Government’s Rules were then published on 6 November 1962. An amendment to the Presidential Order followed on 11 November 1962, wherein the reference to “article 21” was replaced by “articles 14 and 21”. Finally, on 6 December 1962, the originally framed Rule 30 was amended and Rule 30-A was added. The Court noted that this sequence of events formed the factual matrix for the issues presently before it.

In this case the legislation that came into force on 12 December 1962 contained a provision, namely Section 48(1), which expressly repealed Ordinances Nos 4 and 6 of 1962. However, Section 48(2) stipulated that notwithstanding that repeal, any rules that had been made, any acts performed or any actions taken under those two Ordinances would be deemed to have been made, performed or taken under the new Act as if the Act itself had commenced on 26 October 1962. Consequently, the rules that had been framed under the Ordinance continued to operate as rules under the Act, and it was on the basis of Rule 30(1)(b) that the appellants were detained. Before addressing the specific points raised for decision in the present appeals, the Court found it necessary to set out briefly the general contentions advanced by counsel for the appellants, Mr Setalvad, and by the learned Attorney-General on the opposite side. Article 359(1) lies in Part XVIII of the Constitution, which contains the emergency provisions. Whenever the security of India or any part of its territory is threatened by war, external aggression or internal disturbance, the President may, under Article 352, issue a proclamation declaring such emergency. Articles 353 to 360 therefore constitute the constitutional framework for emergency measures. The Attorney-General argued that when interpreting an emergency provision such as Article 359(1) the Court must bear in mind that the provision is intended to address a situation that threatens the nation’s security, and that consequently the fundamental rights guaranteed by Part III, though essential to the democratic ethos of the Constitution, must be subject to regulation during an emergency because the nation’s security is placed in jeopardy. He maintained that the nation’s security must take precedence over individual liberty, and that if Article 359 can be read in two ways—one favoring the protection of fundamental rights and the other granting the President authority to limit those rights—the interpretation should favor the latter. To support this position, the Attorney-General relied on two decisions of the House of Lords. In The King (at the Prosecution of Arthur Zadig) v Halliday, Lord Finlay LC, while construing Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act 1914, observed that if the legislature had intended to interfere with personal liberty it would have specifically provided for the suspension of the writ of habeas corpus, and he rejected the contrary argument. He further noted that the legislature had chosen a different, perhaps milder, method to achieve the same objective. The Attorney-General also cited the majority judgment in Liversidge v Sir John Anderson, where the House of Lords considered the scope and effect of Regulation 18B of the Defence (General) Regulations 1939; Viscount Maugham, rejecting the detainee’s contention that the statute must be interpreted in favour of individual liberty, quoted Lord Finlay’s language with approval.

In the judgment, the Court observed that the measures adopted during the present emergency were intended to be more effectual than those employed in earlier wars. The Court further noted that the rule suggested for construing penal statutes and the provision concerning the trial of British subjects by jury, which were incorporated in the Defence of the Realm Act of 1915, were held to be irrelevant when dealing with an executive action aimed at averting a public danger. The Court then turned to the authority of the majority decision of the House of Lords in Liversidge v. Sir John Anderson, a decision which the learned Attorney-General also relied upon. In that case the House of Lords examined the true scope and effect of Regulation 18B of the Defence (General) Regulations, 1939. The Court cited the relevant reports, namely [1917] A.C. 260 at page 270 and [1942] A.C. 206. Viscount Maugham, in rejecting the detainee’s contention that the liberty of the subject was engaged and that legislation affecting that liberty must, if possible, be interpreted in favour of the subject and against the Crown, quoted Lord Finlay, L.C.’s language from the earlier case of Rex v. Halliday. Lord Macmillan, agreeing with that approach, observed that it is proper to interpret emergency legislation so as to promote, rather than defeat, its efficacy for the defence of the realm; he described this as a general rule applicable to the interpretation of all statutes, whether enacted in peace or in war. Lord Wright and Lord Romer adopted the same method of construction. The Attorney-General further relied on the observation of Gwyer, C.J., in Keshav Talpade v. The King-Emperor, wherein a similar approach was endorsed. In arguing the correct method of construing Article 359, the Attorney-General maintained that the issue of interpretative approach would arise only where two reasonable constructions were possible; he asserted that Article 359 admitted only a single construction, namely the one already accepted by the High Courts of Punjab and Bombay. Conversely, Mr Setalvad contended that Article 359 was not, in substance, emergency legislation, and he vigorously opposed the Attorney-General’s suggestion that, where two reasonable constructions existed, the Court should prefer the construction that favoured the grant of power to the President over that which protected the fundamental rights of citizens. Mr Setalvad relied upon the minority judgment of Lord Atkin in the Liversidge case, arguing that Lord Atkin’s view should be preferred to the majority opinion of the House of Lords. He quoted Lord Atkin’s observation that, “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty…”, thereby emphasizing that judges must remain vigilant protectors of liberty even in times of emergency.

In the judgment, it was observed that judges are not partisans and that they intervene between the citizen and any attempted intrusion on his liberty by the executive, remaining vigilant to ensure that any coercive action is sanctioned by law, as reflected in authorities such as [1917] A.C. 260, 270; [1942] A.C. 206; and [1943] F.C.R. 49, 63. The Court noted that it had heard arguments that, in a different era, might have been appropriately raised before the Court of King’s Bench in the time of Charles I. Recognising that Lord Atkin was in the minority, the Court recorded that Lord Atkin protested, even if he stood alone, against a strained construction of words that would grant unfettered power of imprisonment to the Minister.

In support of this line of reasoning, counsel for the petitioner cited two later decisions of the Privy Council that accepted Lord Atkin’s view. The first of these cases was Nakkuda Ali v. M. F. De S. Layaratne, and the second was King-Emperor v. Vimalabai Deshpande. In Nakkuda Ali, Lord Radcliffe observed that it would be regrettable if the decision in Liversidge were taken to establish a general rule for interpreting such phrases whenever they appear in statutes. He further explained that the Liversidge decision serves as authority for the proposition that the words “if A. B. has reasonable cause to believe” can be understood to mean “if A. B. honestly thinks that he has reasonable cause to believe,” and that, in the specific context of Defence Regulation 18B, those words indeed carried that meaning.

While distinguishing the Liversidge decision, Lord Radcliffe made an important remark that the extensive consideration given by the majority of the House of Lords to the surrounding context and circumstances before adopting that construction indicates that no universal principle exists that such words must always be understood in that manner. Counsel for the petitioner also drew the Court’s attention to the fact that the majority judgment in Liversidge (3) has not been endorsed by leading jurists, as noted in Maxwell on Interpretation of Statutes (p. 276, footnote 54), Craies on Statute Law (p. 309), and Friedmann, Law in a Changing Society (p. 37). In a manner similar to the Attorney-General, the petitioner argued that the Court would not need to choose between two rival constructions in the present appeals because, in his view, the construction he advocated was the only reasonable construction of Article 359, citing authorities [1951] A.C. 66, 76; 73 I.A. 144; and [1942] A.C. 206.

The Court expressed the opinion that it was unnecessary to adjudicate on the merits of the opposing contentions regarding the rule of construction and the methodological approach the Court should adopt in construing Article 359. It was accepted as common ground that the issue of approach would become relevant and material only if the Court were convinced that Article 359 could be reasonably interpreted in two alternative ways. After hearing counsel for both sides, the Court concluded that Article 359 is

The Court observed that Article 359 of the Constitution is reasonably capable of only one interpretation, namely the interpretation that has been adopted by the Punjab and Bombay High Courts. Because this singular construction was accepted, the Court was relieved of the duty of examining the parties’ arguments on the merits of this specific point. Consequently, the Court turned its attention to the broader task of construing Article 359 itself.

In undertaking that construction, the Court considered it useful to compare and contrast the provisions of Articles 358 and 359. Both counsel for the parties, including the advocate for the petitioner and the counsel for the State, submitted that Article 359 should be read in the light of the background provided by a comparative examination of Articles 358 and 359(1) and 359(2). For reference, the two articles read as follows:

“358. 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 competency, 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 in force or for such shorter period as may be specified in the order. (2) Any order made as aforesaid may extend to the whole or any part of the territory of India.”

It was noted that, once a Proclamation of Emergency is issued under Article 352 and remains in force, Article 19 is suspended. This suspension expands the powers of both the legislatures and the executive to the extent that the restrictions imposed by Article 19 no longer apply. The removal of those restraints permits legislatures to enact laws and the executive to take actions that would otherwise be inconsistent with the rights guaranteed by Article 19. Such laws or actions cannot be challenged on the ground of incompatibility with Article 19 either during the continuation of the emergency or after it has ended.

When the Proclamation ceases to operate, any legislative enactments or executive actions undertaken during the emergency become inoperative to the extent that they conflict with the rights guaranteed under Article 19, because the suspension of Article 19 automatically ends and the article resumes full force. Article 358, however,

Article 358 was explained to mean that any act done or omitted during a period of emergency could not be contested even after the emergency had ended. In other words, the suspension of Article 19 was total for the period in question, and any legislative or executive measure that violated Article 19 could not be questioned after the emergency was lifted. By contrast, Article 359 did not expressly suspend any fundamental right. Instead, it empowered the President to issue an order stating that the right to approach any court for enforcement of the specified rights in Part III, and any proceedings pending in such courts, would remain suspended for the duration of the proclamation of emergency or for a shorter period that the order might specify. What the Presidential Order sought to do, under the authority of Article 359(1), was to deny citizens the remedy of filing a suit for enforcement of those rights. The rights themselves were not formally suspended; rather, the avenue of judicial enforcement was withdrawn. This creates a fundamental distinction between the effects of Article 358 and those of Article 359(1). At this stage, the Court noted that there had been argument before it as to whether the fundamental rights listed in a Presidential Order issued under Article 359 remained theoretically alive during the period specified in the order. The Attorney-General had argued that eliminating the citizen’s ability to move a court effectively amounted to a suspension of the rights themselves for that period. The Court declined to resolve that issue in the present appeals and, for the purpose of dealing with the other points raised, assumed in favor of the appellants that the rights continued to exist in theory. Another difference lay in the duration of suspension: the suspension of Article 19 under Article 358 persisted as long as the proclamation of emergency was in force, whereas the suspension of the right to approach a court under a Presidential Order under Article 359(1) could continue for the entire emergency period or for a shorter time if the order so stipulated. It was also observed that a Presidential Order could not expand the powers of the legislature or the executive; it merely suspended the right to seek judicial relief on the ground that a right conferred by Part III had been breached, provided that the right in question was expressly named in the order.

When the Presidential Order ceases to operate, a citizen may be able to challenge either a legislative enactment or an executive action in a court of law. The challenge would be examined on its merits, with the court considering whether the rights claimed to have been violated were still in force during the period when the Presidential Order was in effect. If, after the expiration of the Presidential Order, Parliament enacts a law that seeks to protect executive actions taken while the Order was operative and to grant indemnity to the executive for those actions, the validity and effect of such legislation must be examined with great care. The purpose of Article 359(1) is to suspend the citizens’ right to approach any court, and consequently any legal proceeding that was pending at the moment the Order was issued remains suspended for the duration of the Order. Such a proceeding may be revived only when the Order is no longer operative. The Order also prevents a citizen from instituting a fresh proceeding after the Order’s issuance, because the right to move any court is taken away and cannot be exercised contrary to the Order. If a new suit is filed that falls within the mischief of Article 359(1) and the corresponding Presidential Order after the Order has been issued, that suit must be dismissed as incompetent.

In effect, Article 359(1) together with the Presidential Order creates a moratorium, or a blanket prohibition, against the initiation or continuation of any legal action, subject to two important conditions. The first condition concerns the nature of the legal action: the action must seek relief on the ground that the claimant’s fundamental rights, which are specified in the Order, have been contravened. The second condition relates to the period during which the prohibition operates, which may be for the entire duration of the Proclamation of Emergency or for a shorter period expressly stated in the Order. This approach differs from the suspension of Article 19 under Article 358, which applies uniformly to the whole country and therefore covers all legislatures and states. By contrast, an Order issued under Article 359(1) may be applicable either to the entire territory of India or to any part thereof, as specified in the Order. These are the principal distinctions between Articles 358 and 359(1). Counsel for the petitioner, Mr Setalvad, argued that the phrase “the right to move for the enforcement of the specified rights” should be interpreted to refer only to the right to approach the Supreme Court, a right guaranteed by Article 32(1). He contended that, because the clause mentions “any court,” the only right that can be taken away under Article 359(1) is the right to move the Supreme Court, and therefore a citizen may still approach a High Court under Article 226 for relief, as that right does not fall within the mischief of Article 359(1).

In his submission, counsel for the petitioner interpreted the clause in Article 359(1) as echoing the right guaranteed by Article 32(1). He argued that the only right from which a citizen could be deprived under Article 359(1) was the right to move the Supreme Court. Accordingly, he maintained that even when the Presidential Order specified certain fundamental rights, a citizen could still approach a High Court under Article 226 for relief because the right to move a High Court did not fall within the scope of Article 359(1). He sought to give the phrase “the right to move for the enforcement of the specified rights” a narrow meaning, isolating it from the surrounding words that speak of the right to move “any court”. He contended that in plain language “any court” could not be limited to the Supreme Court alone, but must include all courts of competent jurisdiction. He further argued that if the framers had intended to restrict Article 359(1) to the Supreme Court, they could have expressed that intention expressly rather than using the broader expression “any court”. To support this line of reasoning, he invoked Article 32(3), which allows Parliament to empower any other court, within its local limits, to exercise any of the powers that the Supreme Court may exercise under Article 32(2). He asserted that the Constitution contemplated the existence of other courts on which the Supreme Court’s powers could be conferred, and therefore the words “any court” in Article 359(1) were meant to cover both the Supreme Court and those other courts empowered by Article 32(3).

The Court found this argument untenable. It observed that the design of Article 32 makes clear that the guaranteed right to move this Court is a distinct fundamental right that cannot be claimed in relation to courts created under Article 32(3). Article 32(3) merely provides for the conferment of the Supreme Court’s powers on specified other courts; it does not extend the fundamental right guaranteed by Article 32(1) to those courts. Consequently, a plain construction of the relevant provisions shows that courts falling under Article 32(3) do not acquire the same status as the Supreme Court, and the right to move them does not become a fundamental right of the citizen. Moreover, the Court held that it would be irrational to suggest that the Constitution granted a guaranteed fundamental right to move the High Court under Article 226 while denying a similar guaranteed right to move any other court under Article 359(1). Accordingly, the words “any court” in Article 359(1) must be given their ordinary grammatical meaning, encompassing every court of competent jurisdiction, including the Supreme Court and the High Courts before which citizens may enforce the specified rights.

In this case, the Court observed that the Constitution did not grant citizens a guaranteed fundamental right to approach a High Court under article 226, yet it appeared to contemplate granting such a guaranteed right in relation to those courts on which the Supreme Court’s powers under article 32(2) would be transferred by article 32(3). Consequently, the suggestion that the phrase “any Court” used in article 359(1) could be interpreted narrowly to cover only the Supreme Court and a few other courts was rejected. The Court held that the plain grammatical meaning of the words “any court” must be applied, and they must be understood to refer to any court of competent jurisdiction. In other words, the expression includes both the Supreme Court and the High Courts before which citizens may enforce the rights specified in the Constitution. The Court also addressed an argument that the High Court’s authority to issue writs or orders under article 226(1) was merely discretionary, and therefore no citizen could claim a right to approach a High Court for that purpose, implying that proceedings under article 226(1) fell outside the scope of article 359(1). This argument was found to be unconvincing.

The Court explained that although High Courts possess discretion in deciding whether to grant a writ or order under article 226(1), that discretion must be exercised judicially and in accordance with the scheme of article 226(1). The Court emphasized that article 226(1) confers broad powers on High Courts to issue the writs specified in the Constitution, as well as other appropriate orders or directions. Because of the nature of these powers and the purpose for which they were conferred, it is clear that High Courts, when hearing applications, must exercise their discretion in a judicial manner guided by well-settled principles. High Courts may not arbitrarily or unreasonably refuse to entertain such applications or decline to consider them on their merits merely because the jurisdiction under article 226(1) is discretionary. Accordingly, the Court held that it is incorrect to say that proceedings initiated by citizens under article 226(1) lie outside the purview of article 359(1). The Court therefore concluded that the right to move “any court” under article 359(1) means the right to approach any court of competent jurisdiction. The next issue examined was the character of the proceedings that are barred by the Presidential Order issued under article 359(1); the Court identified those proceedings as actions taken by citizens to enforce the rights granted by Part III of the Constitution.

The Court explained that when a citizen approached any court seeking relief on the ground that the fundamental rights listed in the Presidential Order had been violated, the proceeding was barred by the Order. In deciding whether a particular proceeding fell within the scope of the Presidential Order, the Court held that the relevant inquiry was not the formal shape of the proceeding or the precise wording of the relief claimed, but rather the substantive issue involved. The Court examined whether, before granting the relief sought, it would be necessary for the court to determine whether any of the specified fundamental rights had been infringed. If the grant of relief could not be accomplished without resolving the question of alleged infringement of those rights, the proceeding was deemed to fall within Article 359(1) and consequently was barred by the Presidential Order made under that article. The Court further observed that the reach of Article 359(1) and the accompanying Presidential Order was sufficiently wide to encompass any claim presented before a court of competent jurisdiction, provided that the claim could not be effectively decided without examining whether the citizen was, in essence, seeking to enforce any of the specified fundamental rights. The Court also noted that the operation of Article 359(1) and the Presidential Order was limited to the period during which the emergency proclamation remained in force, or to any shorter period expressly stipulated in the Order. Accordingly, the Court found no difficulty in holding that proceedings instituted by a citizen under either Article 32(1) or Article 226(1) were also covered by Article 359(1) and the Presidential Order. The Court rejected the appellants’ argument that the operation of Article 359(1) should be confined solely to the right to approach the Supreme Court, describing such a construction as rendering the provision virtually meaningless. It would be pointless to prevent a citizen from filing a petition in the Supreme Court while permitting the same citizen to approach the High Courts for identical relief and thereafter appeal to the Supreme Court if necessary. Turning to the question of whether proceedings initiated under Section 491(1)(b) were affected, the Court recalled that Section 491(1)(b) authorises a High Court, at its discretion, to order the release of a person who has been detained illegally or improperly in public custody. It was vigorously contended before the Court that habeas-corpus proceedings under this provision lay outside the ambit of Article 359(1), and therefore the Presidential Order could not bar a citizen from seeking a writ of habeas corpus from the High Court.

The Court observed that the contention that Article 359(1) does not affect habeas-corpus proceedings initiated under section 491(1)(b) required a thorough examination. It noted that when section 491 was incorporated into the Code of Criminal Procedure in its present form in 1923, the entitlement to obtain a direction in the nature of a habeas corpus became a statutory right in India. Consequently, after 1923 no party could rely on common-law writ jurisdiction to seek habeas corpus relief. This point was analysed in detail by the learned Chief Justice Rankin in Girindra Nath Banerjee v. Birendra Nath Pal (1), where the history of the development of the law was examined and the conclusion was reached that relief in the nature of a habeas corpus could thereafter be claimed only under the Criminal Procedure Code (1 I.L.R. 54 Cal. 727). The same view was endorsed by a full bench of the Madras High Court in District Magistrate, Trivandrum v. K. C. Mammen Mappillal (1), which held that the court possessed no power to issue a writ of habeas corpus as understood in English common law and that its authority was confined to the directions conferred by section 491 of the Code. When the issue was raised before the Privy Council in Matthen v. District Magistrate of Trivandrum (2), the Lords observed that the reasoning of Rankin C.J. in the Banerjee case (3) was clear and convincing, and they adopted it, stating their complete agreement with the learned Chief Justice. The Privy Council expressed the same view in King-Emperor v. Sibnath Banerji (4). Relying on these authorities, counsel for the petitioner argued that the statutory right to obtain relief under section 491(1)(b) is a distinct right separate from the constitutional rights guaranteed by the relevant Articles, and therefore Article 359(1) cannot bar the proceedings under that provision. To support this position, counsel also invoked Article 372, which preserves existing laws, and highlighted Articles 225 and 375 to demonstrate that the jurisdiction granted to High Courts by section 491 of the Criminal Procedure Code continues unless it is expressly withdrawn by competent legislation. In support of this argument, reference was made to the historical practice that whenever the operation of section 491 was intended to be suspended, the legislature enacted a specific provision to that effect, citing section 10 of the Restriction and Detention Ordinance, 1944 (No. III of 1944) as an illustration. Section 10 expressly refers to section 491 of the Code and provides that no Court shall

The Court observed that Section 10 of the Restriction and Detention Ordinance, 1944 expressly barred any court from making an order under that provision in respect of an order made under, or having effect under, the Ordinance, or in respect of any person who was the subject of such an order. It was submitted that the Presidential Order was intended to apply only to proceedings taken for the enforcement of constitutional rights. Consequently, if the legislature had meant to prohibit proceedings under section 491(1)(b) as well, the Presidential Order would have needed to be suspended by a competent piece of legislation. Counsel for the petitioner further emphasized that the method of dealing with a proceeding under section 491(1)(b) differs from the method courts employ when handling proceedings under Article 226 or Article 32. When invoking the jurisdiction of the High Courts under Article 226(1) or that of the Supreme Court under Article 32(1), the courts invariably examine whether the party challenging the order is aggrieved by that order. By contrast, section 491(1)(b) empowers the court to act suo motu, thereby highlighting a fundamental distinction in the character of the two categories of proceedings. On this basis, counsel argued that proceedings under section 491(1)(b) lie outside the scope of the Presidential Order and do not fall within the mischief contemplated by Article 359(1). The Court noted that the right to seek a writ of habeas corpus, which formerly existed at common law, became a statutory right after 1923. When section 491 was incorporated into the Code of Criminal Procedure, it was no longer permissible for any citizen in India to claim the writ of habeas corpus on common-law grounds apart from the specific provisions of section 491(1)(b). The learned Attorney-General submitted that, just as the common-law right to obtain a writ of habeas corpus was transformed into a statutory right in 1923, a portion of that statutory right has now become part of the fundamental rights guaranteed by the Constitution. Accordingly, after the Constitution came into force, a detainee seeking release from illegal or improper detention may, in certain cases, sustain his claim on the ground that such detention infringes his fundamental rights under Articles 19, 21 or 23, as the situation requires. If this contention is accepted, it would be difficult to maintain that the portion of the statutory right recognised by section 491(1)(b) retains a distinct and independent character after the Constitution’s commencement, to the extent that it cannot be said to form part of the constitutional fundamental rights. The Court further acknowledged that there are two remedies available to a person whose personal liberty has been infringed.

In this case the Court noted that a person whose personal liberty has been infringed could seek relief either by filing a petition for a writ under Article 226 (1) or Article 32 (1) of the Constitution, or by commencing proceedings under section 491 (1)(b) of the Code. The Court observed that, although a citizen who has been detained improperly or illegally may choose either of these two remedies, the substantive right that the citizen is asserting remains the same. That right is premised on the allegation that his fundamental rights have been violated, and such a right is guaranteed by the Constitution. Consequently, irrespective of whether the detenu chooses a writ petition or a proceeding under the statutory provision, the essential right he seeks to enforce is identical.

The Court further addressed the argument that, under section 491 (1)(b), a stranger may apply for the release of a detenu who is held improperly or illegally, and that the High Court may act suo motu. The provision allowing the High Court to issue an appropriate direction “whenever it thinks fit” was explained as a power that can be exercised without a prior application, although the Attorney-General contended that the phrase implied the existence of a petition or application that the Court must first consider. He also submitted that a third-person applicant must be duly authorized to act on behalf of the detenu or must at least purport to do so. The Court declined to opine on this particular controversy, but it assumed that, in appropriate cases, the Court could indeed exercise its power under section 491 (1)(b) suo motu. The Court then held that this assumption did not affect the issue before it. If the proceedings under section 491 (1)(b) are governed by Article 359 (1) and the Presidential Order made thereunder, the Court’s ability to act suo motu would not alter the legal position, because a party barred from seeking release on the grounds set out in his petition cannot obtain an order that is inconsistent with Article 359 (1) and the Presidential Order. Likewise, where the proceedings are subject to Article 359 (1) and the Presidential Order, arguments relying on Article 372 or on Articles 225 and 375 would have no force. The Court concluded that the suspension of a citizen’s right to approach any court for enforcement of his specific fundamental right necessarily entails a corresponding suspension of the court’s jurisdiction in that regard.

In the present matter, the detenu filed an application asserting that his detention was illegal or improper. The State, in its written response, contended that the detention was neither illegal nor improper because it had been effected pursuant to Rule 30(1)(b). To support this contention, the State relied on the provisions of section 3(2)(15)(i) of the Act. The detenu, in turn, argued that both section 3(2)(15)(i) of the Act and Rule 30(1)(b) were invalid, claiming that they conflicted with the fundamental rights guaranteed to citizens under Articles 14, 21 and 22 of the Constitution. Consequently, the sole issue that required determination by the Court was the validity of the statutory provisions and the Rule cited by the State. If the impugned provisions of the Act and the Rule were found to be ultra vires, the detention would consequently be illegal and improper. Conversely, if those provisions were held to be valid, the detention would be deemed legal and proper. In addressing this point, the Court necessarily had to consider section 45(1) of the Act, which provides that no order made in the exercise of any power conferred by or under the Act could be called into question in any Court. The detenu’s reply was inevitably expected to assert that, despite the prohibition in section 45(1), the validity of the challenged legislation must still be examined. This juxtaposition highlighted the true character of the dispute raised by the detenu in seeking a writ of habeas corpus, namely whether the proceedings under section 491(1)(b) could be treated as distinct enough to escape the operation of Article 359(1) of the Constitution.

The Court further noted that, before the Constitution came into force, a detenu could have challenged the law under which he was detained on the ground that the legislature lacked competence to enact it, or that the law suffered from excessive delegation, or that mandatory procedural requirements under the Act had not been fulfilled. However, at that time the detenu could not have contended that the impugned law was invalid because it violated his fundamental rights, since the right to challenge a statute on the basis of a clash with fundamental rights had only arisen as a consequence of the Constitution itself. The Court observed that this evolution meant that, after the Constitution’s adoption, a detenu could invoke the fundamental rights guaranteed by the Constitution to contest the legality of his detention, even when the detention was based on provisions such as section 491(1)(b). Thus, the Court recognized that the scope of a detenu’s right to challenge the legality of his detention, which previously rested solely on pre-Constitutional grounds, had been broadened by the inclusion of constitutional fundamental rights, thereby raising the question of whether such challenges could be entertained within the framework of proceedings under section 491(1)(b).

In these proceedings, the detainees attempted to set aside the statutory provision and the Rule by invoking their constitutional fundamental rights. The Court explained that if section 491 were considered in isolation from the Constitution, the detainees’ plea could not be heard in proceedings that were initiated under that section. Only when those proceedings were examined not merely under section 491 and the pre-1950 rights but also in the light of the fundamental rights guaranteed by the Constitution could the plea be entertained. Consequently, the right that a detainee possessed under section 491(1)(b) to question the legality of his detention before the Constitution was put into effect was expanded by the constitutional guarantees of fundamental rights. Therefore, whenever a detainee relied on his fundamental rights even to support a petition filed under section 491(1)(b), he was effectively enforcing those constitutional rights, and the proceedings necessarily acquired the character of proceedings for the enforcement of those rights. For that reason, the argument that Article 359(1) and the Presidential Order issued under it did not apply to the section 491(1)(b) proceedings could not be sustained. The prohibition contained in Article 359(1) and the Presidential Order applied to section 491(1)(b) proceedings to the same extent as it applied to proceedings under Article 226(1) and Article 32(1). The Court further observed that deciding the present question required attention to the substantive issue rather than excessive focus on the formal label of the proceedings. If form were treated as decisive, an application containing the necessary averments for the release of a detainee could be rejected by the High Court merely because it was presented under Article 226, while the same application might be entertained and possibly succeed if presented under section 491(1)(b). Such a result would be irrational. The argument implied that when the Constitution-makers framed Article 359, they intended that in an emergency, a Presidential Order issued under Article 359(1) concerning the fundamental rights under Articles 21 and 22 would require a subsequent legislative amendment or repeal of the relevant portion of section 491(1)(b) of the Code of Criminal Procedure. Because the legislature had not enacted such a change, the argument suggested that proceedings under section 491(1)(b) should continue unhindered by the bar created by the Presidential Order. The Court found this position to be wholly untenable.

In this case the Court examined whether proceedings instituted under section 491(1)(b) of the Code of Criminal Procedure fall within the scope of the Presidential Order issued under article 359(1). The determination, the Court said, depends on how article 359(1) and the Order are to be interpreted, and the analysis must focus on the substantive content of the matter rather than on its formal label. The Court then asked whether, before granting relief to a detainee who asserts that he has been illegally and improperly detained, the High Court must first consider the validity of the operative provisions of the challenged Act on the ground that those provisions infringe the specific fundamental rights mentioned in the Order. If the answer is affirmative, the limitation created by article 359(1) and the Presidential Order would inevitably apply, even though the proceedings are formally brought under section 491(1)(b). The Court opined that once it is shown that a proceeding under section 491(1)(b) cannot make any meaningful progress unless the court is required to assess the constitutional validity of the impugned law on the basis of its alleged contravention of the specified fundamental rights, the limitation imposed by the Presidential Order must operate against those proceedings exactly as it operates against proceedings filed under article 226(1) of the Constitution or article 32(1). Consequently, the true legal position, in substance, is that the phrase “the right to move any court” used in article 359(1) and reiterated in the Presidential Order embraces every legal action that is intended to be filed, or has been filed, for the enforcement of the specified rights. The phrase therefore covers all categories of jurisdiction of competent courts that would normally entertain and try such actions. The Court then referred to its recent decision in Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura, where it rejected the detainee’s petition because the Presidential Order barred it and declined to consider the argument that the ordinance, the Act and the rules made thereunder were void for contravening articles 14, 21 and 22. The Court observed that the petitioner’s challenge amounted to “arguing in the circle.” The Court explained that if the Presidential Order prevents a citizen from moving any court to enforce the specified fundamental rights, the same citizen cannot subsequently argue that the Act is void because it offends those rights. The Order was issued precisely to stop such a claim, and therefore, during the period of its operation, any challenge to the validity of the Act cannot be entertained. The Court also noted, incidentally, that a writ of habeas corpus filed by Mohan Chowdhury, which had been dismissed by the Supreme Court on the ground of the Presidential Order, would, according to the view advanced by the appellants, be permissible if it were presented before the appropriate High Court under section 491(1)(b) of the Code.

It was pointed out that placing excessive emphasis on the technical form of a petition could produce results that are both absurd and unreasonable. Consequently, the Court concluded that the proceedings, reported in [1964] 3 S.C.R. 412 at 53-2 SC India/64 and brought before the respective High Courts on behalf of the appellants, cannot be entertained. The appellants had sought to challenge their detention by asserting that the Act and the Rules under which they were held were void because they violated Articles 14, 21 and 22 of the Constitution. However, the Court found these challenges to be incompetent, because the very rights that were alleged to have been infringed are enumerated in the Presidential Order, which expressly bars every citizen from approaching any court for the enforcement of those specified rights.

The next issue for consideration was the validity of the Presidential Order itself, which was issued on 3 November 1962. The Order reads as follows: “G.S.R. 1464 – In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on 26 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 Order was later amended on 11 November 1962 by the addition of Article 14. The first argument raised against the Order’s validity was that it contradicted the provisions of Article 359(1). The contention was that a President-issued Order under this article must be of general application, whereas the present Order was limited to persons who had been deprived of the specified rights under the Defence of India Ordinance, 1962, or any rule or order made thereunder. In other words, the Order did not extend to individuals detained under the earlier Preventive Detention Act No. 4 of 1950, and thus, by restricting its operation to persons detained under the Ordinance, the President was alleged to have acted beyond the authority granted by Article 359(1). The Court rejected this line of reasoning, holding that the power conferred on the President is sufficiently broad to enable him to issue an Order that applies to the entire territory, to all citizens, and with respect to any of the rights listed in Part III of the Constitution. This broad power includes, in the Court’s view, the authority to issue a limited Order. Accordingly, the purpose of the Order was understood to be to prohibit every person, wherever located, who has been detained under the Ordinance or the Act, from approaching any court for the enforcement of the rights specified in the Order.

In this case, the Court observed that it was difficult to conceive how the Presidential Order could be said to conflict with or be inconsistent with the authority granted to the President by Article 359(1). The petitioner then contended that the Order was void because it attempted to give effect to the Ordinance, which they claimed was itself void. The Court recalled that Ordinance Number 4 of 1962 had been promulgated on 26 October 1962, whereas the Presidential Order under Article 359(1) had been issued on 3 November 1962. The contention was that, in the interval between 26 October and 3 November, the validity of the Ordinance could have been challenged on the ground that it violated Articles 14, 21 and 22. Accordingly, the petitioner argued that the Ordinance was a “still-born” piece of legislation and that detentions made under such a void law were being protected by the Presidential Order, which stripped the detainees of their right to approach any court to question the validity of their detention orders. The Court regarded this argument as wholly misconceived. It reiterated that, for the purpose of the appeals, it was prepared to assume that, despite the issuance of the Order under Article 359(1), the fundamental rights guaranteed by Articles 14, 21 and 22 were not suspended; only the enforcement of those rights was suspended for the period prescribed in the Order. Consequently, the statement that the Ordinance was invalid during the period from 26 October to 3 November remained true even after the Order was issued on 3 November. The Court explained that, if the detainees were correct in asserting that the Ordinance and the Act which replaced it contravened the fundamental rights in Articles 14, 21 and 22, then those statutes would be invalid and would continue to be invalid. However, the effect of the Presidential Order was to prevent the validity of those statutes from being tested during the prescribed period. Therefore, the Court rejected the proposition that the invalidity of the Ordinance or the Act barred the Presidential Order from precluding a citizen from testing that invalidity. The same line of reasoning was presented in another form. It was urged that the Court should merely examine the Ordinance and the Act to determine whether Articles 14, 21 and 22 (clauses 4, 5 and 7) had been breached, and it was suggested that, if such breaches were evident, the President could not issue an Order that stopped detainees from challenging the validity of those statutory provisions. The Court noted that this argument resembled the circular reasoning described in Mohan Choudhury’s case. Accordingly, the Court concluded that the challenge to the validity of the Presidential Order was not well-founded. The Court then indicated that it remained to consider what remedies were available to citizens in challenging the legality or propriety of their detentions under

Section 491(1)(b) of the Code of Criminal Procedure and Article 226(1) of the Constitution were noted as the statutory provisions that permit a person detained under the Presidential Order to approach the courts. The judgment observed that the suspension created by Article 359(1) and the Presidential Order applies only to the enforcement of the rights enumerated in Part III of the Constitution that are expressly mentioned in the Order. Consequently, when a detainee challenges the validity of his detention on a ground that lies outside the rights specified in the Order, his entitlement to file a petition in any court remains unaffected, because such a ground is not covered by Article 359(1) and therefore falls beyond the scope of the Presidential Order. To illustrate this principle, the Court considered a scenario in which a detainee is held in violation of the mandatory provisions of the Act. In that situation, the detainee may contend that his detention is unlawful because the statutory mandatory requirements have not been complied with. Since this allegation does not invoke any of the rights listed in the Order, the detainee’s right to seek release on that basis cannot be barred by the Presidential Order. The Court further examined a case where the detainee files a habeas-corpus petition on the ground that the detention was ordered in a mala fide manner. The Court emphasized that the exercise of power in a mala fide way lies wholly outside the statutory power conferred by the Act and can always be successfully challenged. While a mere allegation of mala fides is insufficient, the detainee must nevertheless prove the mala fides; nevertheless, the detainee cannot be prevented from establishing this plea on the ground of the bar created by Article 359(1) and the Presidential Order. This represents another category of plea that is excluded from the operation of Article 359(1). Section 491(1) governs the High Court’s authority to issue directions of the habeas-corpus type and delineates six distinct categories of cases wherein such directions may be granted. The only category in which the bar under Article 359(1) and the Presidential Order would apply is the specific case falling under Section 491(1)(b), where the legality of the detention is challenged on grounds that are themselves covered by Article 359(1) and the Presidential Order. In all other categories covered by Section 491(1), the bar does not apply and the proceedings initiated on behalf of the detainee must be conducted according to law. The Court added that the categories of pleas discussed were offered merely by way of illustration and should not be interpreted as an exhaustive list of all pleas that lie outside the Presidential Order’s reach. Finally, the Court noted another possible ground for challenging the validity of the detention: if the detainee argues that the operative provision of the law under which he is detained suffers from the vice of excessive delegation, that argument likewise falls outside the ambit of Article 359(1) and the Presidential Order and therefore is not barred at the threshold.

In this case the Court observed that a plea raised by a detainee, which challenges the validity of a statutory provision on the ground that it is void for excessive delegation, cannot at the outset be said to fall within the bar created by the Presidential Order. The Court explained that the plea is not one that relates to the specific fundamental rights enumerated in that Order; rather, it is an independent claim whose merit must be examined on its own terms. Counsel for the petitioner contended that section 3(2)(15)(i) and section 40 of the Act are invalid because they vest rule-making power in an authority in a manner that is commonly described as excessive delegation of legislative authority. The Court therefore found it necessary to consider that contention.

The Act, which replaced the earlier Ordinance, was enacted because the legislature deemed it essential to provide special measures to safeguard public safety, the defence of India, civil defence, and the interests of the state, as well as to provide for the trial of certain offences and related matters. Section 3(2)(15)(i) of the Act, which is the subject of the challenge, purportedly confers upon the Central Government the authority to make rules. The text of section 3(1) states: “The Central Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.” Section 3(2) then adds that, without prejudice to the generality of the powers conferred by sub-section (1), the rules may provide for, and may empower any authority to make orders concerning, any of the matters listed in clauses (1) through (57). Among those clauses is clause (15)(i), which reads in full: “Notwithstanding anything in any other law for the time being in force, the rules to be made may provide for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India’s relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.”

The argument advanced by the petitioner’s counsel was that by conferring on the Central Government the power to make such rules, the legislature had effectively abdicated its core legislative function in favour of the executive, thereby resulting in an unlawful delegation of legislative authority. The Court examined this contention and concluded that the argument was wholly untenable. The Court emphasized that, from the very inception of the legislation, the delegation of rule-making power was designed to allow the executive to implement the clear and specific policy framework laid down by the legislature, rather than to transfer the legislature’s essential law-making function. Consequently, the challenge based on excessive delegation was rejected, and the provisions in question were held to be constitutionally valid.

When the Supreme Court examined the scope of legislative delegation in the 1951 Special References case, In re The Delhi Laws Act, 1912 etc., it clarified that the legislature may not transfer its core legislative function to another body. The Court explained that any delegation that includes powers essentially legislative in nature renders the statute invalid because it creates a serious defect in the legislation. Conversely, the Court held that if the legislature articulates its policy in clear and unmistakable terms and then authorises a subordinate authority to implement that policy by formulating appropriate rules, such delegation is permissible. This principle was applied in Harishanker Bagla v. State of Madhya Pradesh, where the Court upheld section 3 of the Essential Supplies (Temporary Powers) Act, 1946. The Court found that the preamble and the operative sections of that Act sufficiently expressed the legislative policy, and that the details of that policy could only be worked out by delegating rule-making power to a subordinate authority within the established framework. A similar view was expressed in Bhatnagars and Co., Ltd. v. Union of India, reaffirming that clear legislative intent coupled with detailed guidance to the delegate does not constitute an illegal delegation of legislative power.

In the matters currently before the Court, a reading of section 3(1) together with the specific provisions listed in the several clauses of section 3(2) demonstrated that the challenge to the validity of those provisions on the ground of excessive delegation could not be sustained. The preamble to the Act set out the broad legislative policy, and the body of section 3 itself provided detailed and specific directions to the authority responsible for making rules. Consequently, it would be unreasonable to contend that the Act had transferred an essentially legislative function to the rule-making authority. Accordingly, the Court rejected the contention that subsection 3(2)(15)(i) suffered from excessive delegation. The same reasoning was applied to section 40 of the Act. Since those sections were held to be valid, Rule 30(1)(b), which the appellants contested, was also held to be valid because it was consistent with the operative provisions of the Act and because the Central Government had acted within the authority delegated to it. This conclusion was limited to the appellants’ claim that the impugned provisions and the Rule were invalid due to excessive delegation.

The Court observed that, had it concluded that the impugned provisions of the Act were invalid because they delegated power in a manner that amounted to excessive delegation, it would then have been necessary to examine the consequences of such a finding for the substantive dispute before it. In that hypothetical situation, the Court would have needed to determine whether a detainee, in challenging the order of detention issued against him, was invoking his fundamental right under Article 21 of the Constitution. Article 21, which is listed among the articles specified in the Presidential Order, cannot be invoked at any stage of the proceedings if the detainee seeks to enforce it, because the Presidential Order bars such enforcement. It could have been argued that, if the detainees succeeded in showing that the challenged provisions were invalid on the ground of excessive delegation, their next step would have been to claim that their detention under an invalid Act was void under Article 21, on the premise that the law contemplated by that article must be a valid law. That line of argument would, in turn, raise the question of whether such a plea falls within the scope of Article 359(1) and the Presidential Order made under that article. The Court expressly declined to express any opinion on that particular question in the present appeals. Since it had already held that the Act did not suffer from the alleged vice of excessive delegation, the Court found it unnecessary to pursue the enquiry into whether, had the challenge been upheld, the detainee would have been precluded from relying on the invalidity of the Act to support the claim that his detention was illegal.

Turning to other matters raised during the hearing, counsel for the petitioner argued that the portion of the Act containing the impugned sections was a colourable piece of legislation. The argument was based on the contention that the Preventive Detention Act No 4 of 1950 was already in force, making it unnecessary for the Legislature to enact the impugned Act. According to this line of reasoning, the sole purpose of passing the new Act was to deprive citizens of their fundamental rights under Articles 21 and 22, and therefore the legislation should be deemed colourable. The Court noted that the Parliament’s competence to enact the Act was not in dispute, because Entry 9 in List I of the Seventh Schedule expressly empowers Parliament to make laws relating to preventive detention for reasons connected with defence, foreign affairs, or the security of India, as well as laws concerning persons who are subject to such detention. The Court further observed that, if the Legislature believed that, in view of the serious threat to India’s security posed by the Chinese aggression, it was necessary to pass the impugned Act despite the existence of an earlier Act, it would be difficult to conclude that the Legislature acted in bad faith or that the Act should be struck down as a colourable exercise of legislative power. The Court emphasized that a challenge on the ground that a validly enacted law is colourable cannot succeed merely on such flimsy premises, and that the wisdom of enacting that part of the Act is irrelevant to the question of its colourability.

The Court observed that, even assuming another statute had already been enacted for the same purpose, it would be difficult to conclude that the Legislature acted with malafide intent and that the impugned Act therefore had to be struck down as a colourable exercise of legislative power. It further emphasized that a challenge premised solely on the allegation that a competent legislature passed a colourable piece of legislation could not succeed on such tenuous grounds. Whether the passage of that particular portion of the Act was a wise legislative decision was held to be irrelevant to the contention that the Act was colourable. In this regard, the Court noted another facet of the argument that had been raised before it and, before addressing that point, set out the constitutional provisions that were pertinent. Article 14 guarantees equality before the law. Article 21 provides, inter alia, that no person shall be deprived of personal liberty except in accordance with a procedure established by law. Articles 22(4), 22(5), 22(6) and 22(7) lay down constitutional safeguards for citizens whose personal liberty may be affected by a detention order. Article 22(4) requires the constitution of an Advisory Board and mandates that the cases of detenues be referred to that Board for its opinion. Article 22(5) obliges the detaining authority to communicate to the detenu the grounds of detention so that the detenu may have the earliest opportunity to make a representation against the order. Article 22(6) provides that, in giving notice under Article 22(5), the authority need not disclose facts that it considers against the public interest. Article 22(7) prescribes certain conditions that any law empowering the detention of citizens must satisfy. The Court therefore concluded that while the Constitution does empower Parliament to enact a law providing for the detention of citizens, that power must be exercised in conformity with the mandatory conditions specified in Articles 22(4), 22(5) and 22(7). It was accepted as common ground that the Preventive Detention Act of 1950 complies with these requirements, having enacted sections 7 to 13 to that effect. By contrast, the impugned Act did not incorporate the constitutional safeguards enumerated in Articles 22(4), 22(5) and 22(7). The argument advanced by the petitioners was that, even if Parliament believed that during the emergency citizens suspected of prejudicial activities should be detained without the benefit of the safeguards guaranteed by Articles 22(4), 22(5) and 22(7), Parliament was not obliged to enact a new Act and could have left the executive to act under the 1950 Act. Nevertheless, because Parliament chose to pass the challenged Act and, in the view of the petitioners, ignored the constitutional provisions of Articles 14 and 22, the petitioners contended that the legislation was a colourable exercise of legislative power.

The Court observed that, in the present circumstances, Parliament’s use of its legislative authority could be characterized as a colourable exercise of power. The argument put forward assumes that, had Parliament anticipated that the executive would detain individuals under the Preventive Detention Act, 1950 without extending to them the constitutional safeguards enumerated in Article 22, those detentions might nevertheless have been protected by a Presidential Order issued under Article 359(1) of the Constitution. The Court then asked whether this assumption rests on a sound foundation. It considered a hypothetical situation in which a Presidential Order suspended the right of detained persons to approach any court for enforcement of the fundamental rights guaranteed by Articles 14, 21 and 22, and further applied that suspension to all persons detained under the Preventive Detention Act, 1950. The Court examined whether, under such an Order, detainees would have been barred from contending that their detention was illegal and void. It also explored the consequence of a detainee challenging the legality of his detention on the ground that the statutory requirements of the Act had not been observed. The question was whether that challenge would fall within the scope of Article 359(1) and the Presidential Order, or whether the detainee would simply be enforcing the fundamental rights referenced in the Order. The Court noted that, if the challenge were based solely on the failure to comply with mandatory provisions of the Act, it would ordinarily lie outside the reach of Article 359(1) and the Order. Conversely, if the essence of the challenge were to enforce the fundamental rights that those mandatory provisions embody, the challenge might be caught by the prohibition contained in the Presidential Order. The Court reiterated its earlier position that a direct attack on the statutory compliance of a detention order normally does not attract Article 359(1); however, the present hypothetical is complicated because the mandatory provisions at issue are, in effect, the very rights guaranteed by Article 22, giving rise to the argument that the detainee’s grievance is fundamentally about the enforcement of those constitutional protections.

The Court clarified that it was unnecessary at this stage to determine definitively whether the hypothetical challenge would be subject to Article 359(1) and the Presidential Order. The reference to this theoretical scenario was made solely to illustrate that Parliament may have believed that the executive would be unable to detain persons reasonably suspected of prejudicial activities solely by invoking the Preventive Detention Act, 1950, and that such a belief could have motivated the enactment of the legislation now under scrutiny. If that inference were correct, the Court indicated, it would undermine any suggestion that Parliament acted in bad faith while passing the impugned Act. The Court further noted that even if the Act were found to contravene the fundamental rights of citizens under Articles 14 and 22, rendering it void, the operation of Article 359(1) and any Presidential Order issued thereunder would nevertheless preclude the affected individuals from seeking judicial enforcement of those rights during the period specified by the Order. Consequently, the Court emphasized that the alternative argument advanced in support of the petition cannot be resolved without first addressing the interplay between the statutory provisions, the constitutional safeguards, and the scope of the emergency powers conferred by Article 359(1).

It was held that it could not be said that Parliament acted in a dishonest manner when it passed the Act. The judgment observed that, if the Act were found to infringe the fundamental rights guaranteed by Articles 14 and 22, the Act would become void and any detention made under its provisions would consequently be ineffective. Nevertheless, the Court emphasized that in precisely such a situation Article 359(1) of the Constitution and the Presidential Order made pursuant to that article step in to prevent the citizen from invoking his fundamental rights before any court. Both the constitutional provision and the Order show that there may be instances where executive action contravenes the specified fundamental rights and that such executive action may be invalid. For this reason the article and the Order expressly bar any examination of the merits of the challenge during the period prescribed by the Order. The Court therefore concluded that the alternative contentions advanced in support of the plea that the challenged provisions of the Act were merely a colourable piece of legislation could not succeed. The counsel appearing for the petitioner, who presented his own case with notable skill, argued that a person detained under the Act could not be stopped from questioning the validity of the Ordinance, the Act and the Rules made under the Presidential Order so long as he did not seek any consequential relief. He contended that the prayer framed in the petition under section 491(1)(b) comprised two parts: the first part sought a declaration that the Act and the Order were invalid, while the second part asked that the detention be held illegal and that the petitioner be ordered to be released. According to the counsel, the first part did not fall within the purpose of the Order because it sought only a declaration and did not enforce any right; moreover, even if the detenu were barred from challenging the legality of his detention by virtue of the Order, he should still be permitted to challenge the validity of the law merely to obtain a declaration. The Court rejected this line of argument. It explained that section 359(1) empowers the President to issue an Order that suspends the detenu’s right to move the Court to challenge his detention on the ground that any of his specified fundamental rights have been infringed. Consequently, it would be unreasonable to allow a detenu to do something that the Order forbids in order to obtain an academic declaration. A proceeding under section 491(1)(b) is akin to a petition filed under Article 226(1) or Article 32(1) and is intended to secure relief, which in these circumstances means an order for the release of the detenu. If the detenu is prohibited from seeking release while the Presidential Order is in force, he cannot be allowed to obtain a mere declaration of invalidity of the law.

It was held that because the detenu could not request an order of release on the basis that he could not challenge the validity of his detention while the Presidential Order was in force, the same detenu could not seek a mere declaration under section 491 of the Criminal Procedure Code or under article 226(1) or article 32(1) of the Constitution. The Court observed that the High Court was not authorised to examine the validity of the impugned Act without linking that enquiry to the specific prayer made by the detenu in his petition. The petition filed by the detenu under section 491(1)(b) was regarded as a single proceeding, and if the only relief he could obtain – namely his release – was barred by the Presidential Order, it would be unreasonable to allow him to obtain a different remedy, such as a declaratory order. Such a declaration was considered to lie outside the scope of proceedings brought under section 491(1)(b) and articles 226(1) and 32(1). During the hearing of the appeals, counsel for the petitioner strongly urged that the emergency caused by the Chinese act of aggression might be prolonged, thereby preventing citizens from enforcing the fundamental rights enumerated in the Presidential Order while the Order remained operative. The Court noted that this argument did not affect the matters presently before it. The length of the proclamation of emergency and the extent of restrictions on citizens’ fundamental rights during the emergency were deemed matters for the executive, as the executive alone possessed the necessary knowledge of the situation and the coercive factors that operate in a grave crisis such as the one confronting the nation. The Court cited Lord Wright’s observation in the Liversidge case that the safeguard of liberty rests in the public sense and in a system of representative and responsible government, and that extraordinary powers are granted only because the emergency is extraordinary and are limited to the duration of that emergency. Another point raised by counsel for the petitioner was that, during the operation of the Presidential Order, the executive might abuse its powers and leave citizens without a remedy. The Court regarded this contention as essentially political and at most indirectly relevant to the constitutional issue under consideration. Nevertheless, the Court allowed that in a democratic State the principal safeguard against abuse of executive authority, whether in peace or in emergency, is the presence of an enlightened, vigilant and vocal public opinion. The appellants also relied upon the observations of Lord Atkin in the case of Eshuqbavi Elecko v. Officer Administering the Government of Nigeria, where Lord Atkin, speaking for British jurisprudence, declared that no member of the …

In this case, the Court noted that, according to Lord Atkin, an executive may not interfere with the liberty or property of a British subject except on the condition that the executive can support the legality of the action before a Court of Justice, and that the tradition of British justice requires judges not to shrink from deciding such issues when faced with executive pressure. The Court observed that these noble sentiments eloquently expressed by Lord Atkin, together with his classic minority speech in the case of Liversidge, evoke a spontaneous response in the minds of all who have taken the oath to administer law in accordance with the Constitution and to uphold the fundamental rights guaranteed by the Constitution. The Court affirmed its full awareness of the solemn duty imposed by Article 32, which makes it the custodian and guardian of citizens’ fundamental rights. Yet the Court emphasized that the democratic faith in the inviolable character of individual liberty, freedom, and the majesty of law that sustains it must ultimately be governed by the Constitution itself, which is the law of laws—the paramount (1) [1942] A.C. 206 (2) A.I.R. 1931 P.C. 248—and the supreme law of the country. The Constitution has enshrined the fundamental rights of citizens in Part III, and it is unquestionably the duty of this Court, as the custodian of those rights, to see that they are not contravened contrary to the provisions of the Constitution. At the same time, the Constitution has made certain emergency provisions in Chapter XVIII with a view to enable the nation to meet grave emergencies such as the present one. Accordingly, when dealing with the question of a citizen’s right to challenge the validity of his detention, the Court held that it must give effect to the plain words of Article 359(1) and to the Presidential Order issued under it. The Court explained that the only reasonable construction that can be placed upon Article 359(1) is to hold that the citizen’s right to institute any legal proceeding for the enforcement of his fundamental rights specified in the Presidential Order is suspended during the prescribed period. It is plain, the Court said, that the right mentioned in Article 359(1) includes the relevant right, whether statutory, constitutional or constitutionally guaranteed, and that the words “any court” refer to all courts of competent jurisdiction, naturally including the Supreme Court and the High Courts. If that is so, it would be singularly inappropriate for this Court to entertain an argument that seeks to circumvent the provision by suggesting that the right of the detainee to challenge the legality of his detention under section 491(1)(b) does not fall within the scope of the article. The argument, the Court observed, concentrates solely on the mere form of the petition and ignores the substance of the matter altogether. In this context, such a sophisticated approach, which leans solely on unrealistic and artificial subtlety, is out of place, illogical, unreasonable and unsound.

The Court held that the judgments of the Punjab High Court and the Bombay High Court were correct in deciding that the detainees before those courts were not permitted to argue that the Act and the statutory rule under which they were detained were void because they violated Articles 14, 21 and 22(4), (5) and (7) of the Constitution. Before disposing of the present group of appeals, the Court wished to record one further observation that arose at the very beginning of the hearing. When counsel for the petitioners, Mr Setalvad, commenced his argument on the validity of the impugned provisions of the Act and the Rules, the learned Attorney-General raised a preliminary question. He contended that, as a matter of logic, the petitioners first had to demonstrate to the Court that it was open to them to approach the High Courts on the grounds they had raised, before the Court could examine the correctness of those grounds. In his view, the first issue for consideration should be whether the detainees could challenge the validity of the Act on the basis that their detention was illegal. If they were able to show that the applications filed by them under section 491(1)(b) of the Code of Criminal Procedure were competent and did not fall within the sweep of Article 359(1) and the Presidential Order, then the Court could proceed to assess the merits of their claim that the statutory provisions were invalid. Conversely, if the detainees failed on that initial point, the second issue—namely the substantive validity of the Act and the Rule—would not need to be addressed. The Attorney-General further argued that this sequencing was necessary to preserve the effect of the Presidential Order, which suspended the right to approach any court for enforcement of fundamental rights during the period specified.

The Court then explained that, because a substantial number of appeals were pending and each raised significant questions of constitutional law, it was preferable to permit Mr Setalvad to present his case in the order he considered appropriate. Accordingly, Mr Setalvad first addressed the Court on the question of the Act’s validity and only afterwards turned to the issue of whether the applications filed under section 491(1)(b) were within the jurisdiction of the courts. The same approach was followed by the other counsel who appeared for the appellants. When the Attorney-General answered, he was compelled to respond on both of the points raised by the petitioners. He admitted that, with respect to the substantive validity of the impugned provisions, he was not in a position to dispute the petitioners’ allegation that the Act infringed Articles 14, 21 and 22(4), (5) and (7). Nevertheless, he reiterated his primary contention that the Court would never reach the stage of expressing an opinion on the Act’s validity if it were to uphold the preliminary objection that the detainees’ applications were incompetent. The Court agreed with that submission, emphasizing that it could not and should not pronounce on the constitutionality of the Act when it concluded that the bar created by the Presidential Order applied to the detainees in the present cases. Accordingly, the Court refrained from examining the detailed content of the Act or the Rule, limiting its consideration to the preliminary competence of the applications. In fact, that is precisely the course that the Court adopted.

In this case the Court followed the same approach that it had taken in the matter of Mohan Choudhury’s case, and it was satisfied that this approach was the only one that could be adopted logically and properly. Consequently the Court held that the Punjab High Court and the Bombay High Court were correct in concluding that the petitions filed by the detenues seeking release under section 491(1)(b) of the Code of Criminal Procedure were incompetent, because those petitions attempted to question the validity of the detentions on the basis that the Act and the Rule on which the detentions were based violated the fundamental rights guaranteed by Articles 14, 21 and 22(4), (5) and (7). As these appeals had been referred to a Special Bench for resolution of the common questions of law they raised, the Court declined to consider any other grounds that each appellant might have raised in his individual appeal. The Court therefore ordered that all of the appeals that formed the present group be placed before a Constitution Bench and that each appeal be dealt with according to the law. Justice Subba Rao stated that he had read the judgment of his colleague Justice Gajendragadkar and, while he could not accept it in its entirety, he agreed with the conclusion concerning the operation of Article 359 of the Constitution in relation to a right to approach a court under Articles 32(1) and 226. He did not share the same view regarding the exercise of power by the High Court under section 491 of the Code of Criminal Procedure. He observed that the appeals raised questions of great importance that touched upon the apparently conflicting but ultimately harmonious concepts of individual liberty and the security of the State, noting that one cannot exist without the other. He explained that his decision to treat the subject separately, even on points where there was general agreement, stemmed from his conviction that on important questions he ought to express his thoughts in his own way. He identified two principal questions for the Court’s consideration: first, whether section 3(2)(i) of the Defence of India Act, 1962 and rule 30(1)(b) made under that Act were constitutionally void; and second, whether the Presidential Order issued under Article 359(1) of the Constitution barred any court action questioning the validity of the detention order made under the Act. He indicated that he would address these two questions in the order and, before doing so, would quote the impugned provisions of the Act, beginning with section 3.

Section 3 of the Defence of India Act, 1962 authorises the Central Government, by notification in the Official Gazette, to make any rules that it considers necessary or expedient for securing the defence of India and civil defence, for protecting public safety, for maintaining public order, for the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. Sub-section (2) clarifies that, without limiting the general powers of sub-section (1), the rules may provide for, and may empower any authority, to make orders dealing with any of the matters listed in the provision. Paragraph (15) states, notwithstanding any other law in force, that the authority empowered by the rules to apprehend or detain (the authority must not be lower in rank than a District Magistrate) may apprehend and detain any person whom that authority, on reasonable grounds, suspects of being of hostile origin or of having acted, being about to act, or likely to act in a manner prejudicial to the defence of India and civil defence, to the security of the State, to public safety or interest, to the maintenance of public order, to India’s relations with foreign States, to the maintenance of peaceful conditions in any part or area of India, or to the efficient conduct of military operations, where the authority is satisfied that such apprehension and detention are necessary to prevent the person from acting in any such prejudicial manner. Rule 30-(1) provides that the Central Government or a State Government, if satisfied that it is necessary to prevent a particular person from acting in any manner prejudicial to the defence of India and civil defence, public safety, maintenance of public order, India’s relations with foreign powers, maintenance of peaceful conditions in any part of India, efficient conduct of military operations, or maintenance of supplies and services essential to the community, may make an order directing that the person be detained. Rule 30A-(2) mandates that every detention order shall be reviewed in accordance with the provisions that follow. Rule 30A-(3) further provides that a detention order made by the Central Government, a State Government or the Administrator shall be reviewed by the same authority that made the order. Rule 30A-(4) specifies that a detention order made by an officer (who shall not be lower in rank than a District Magistrate) empowered by the State Government or the Administrator shall be reviewed as follows: (a) when the order is made by an officer empowered by the State Government, the review shall be conducted by a reviewing authority consisting of any two officers selected from among the Chief Secretary, a member of the Board of Revenue, a Financial Commissioner and a Commissioner of a Division, as may be specified by that Government by notification in the Official Gazette; and (b) when the order is made by an officer empowered by the Administrator, the review shall be carried out by the Administrator himself.

The provision allows an officer who is empowered by the Administrator to act, and the Administrator himself may also act as the reviewing authority. Under these rules the Central Government, the State Government, or any officer to whom the power of detention has been delegated may order the detention of a person whenever the detaining authority believes that such detention is necessary for any of the reasons specified in rule 30. The law does not require that the grounds for detention be communicated to the person detained, nor does it obligate the authority to give the detained person an opportunity to make representations or to prove his innocence. The period of detention is not limited and may, therefore, be indefinite. The same Central Government, State Government, or the Administrator of a Union Territory that issues the detention order is also authorised to review that order. Likewise, a detention order issued by an officer empowered by the State Government may be reviewed by any of the officers listed in rule 30A(4). The petitioner contends that these provisions violate Articles 22(4) and 22(5) of the Constitution and are consequently void.

The Court referred to the decision in Deepchand v. State of Uttar Pradesh, where it was held that a law which infringes fundamental rights is void ab initio. The judgment explained that whether the Constitution expressly empowers the legislature to enact subject-wise laws or merely prohibits it from encroaching on fundamental rights, both situations reflect a limitation on legislative power. The Constitution expressly subjects the legislature’s power to make laws listed in the Seventh Schedule to the other provisions of the Constitution, thereby restricting that power by the limitations in Part III. Consequently, any law made beyond or in derogation of those powers is void either wholly or to the extent of the inconsistency. This principle was reaffirmed in Mahandra Lal v. State of U.P. The Court therefore concluded that, if the Act and the rules made under it breach Articles 22(4) and 22(5), they would be void from the outset, rendering any detention effected under them illegal. Articles 21 and 22 protect personal liberty, with clauses 4 to 6 of Article 22 specifically addressing preventive detention. In A. K. Gopalan v. State of Madras, the Court clarified that “law” in Article 21 means a statute enacted by the State, and that Article 22 merely prescribes the minimum procedural safeguards that such a statutory law must observe in matters of preventive detention.

In this case the Court set out the minimum safeguards required by clauses 4 to 6 of Article 22 of the Constitution. First, a law must prescribe the maximum period for which any person may be detained. Second, a person may not be detained for more than three months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention. Third, the authority issuing the detention order must communicate to the detained person the grounds of the order and must afford him the earliest opportunity to make representations against it. Clause 7, however, permits Parliament to enact a law that specifies the circumstances and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. Clause 6 empowers an authority to withhold facts from the detainee when disclosure would be against the public interest. While clauses 4 to 6 provide the minimum procedural safeguards for a detainee in preventive detention, clause 7 effectively removes those safeguards by allowing Parliament to legislate for preventive detention while ignoring them, subject only to a definition of the circumstances and classes of cases where longer detention is permissible. The Court observed that Parliament did not enact such a law. Neither the Act nor the rules made thereunder contain a provision fixing a maximum detention period, nor do they require communication of the grounds of detention to the detainee, nor do they provide an opportunity to make representations, nor do they establish an Advisory Board composed of persons with the requisite qualifications. The power of review conferred on the detaining authority cannot be said to satisfy the Advisory Board requirement of clause 4(a). Consequently, the Court held that Parliament enacted a law that directly contravenes the relevant provisions of Article 22, rendering the law void under that article. The Court then noted an argument advanced by the learned Attorney-General, who contended that, on a true construction of Article 359(1) of the Constitution, a law could be made in infringement of Article 22 if the requisite order is issued by the President. Article 359 permits the President, by order, to declare that the right to move any court for the enforcement of the rights conferred by Part III, as specified in the order, shall remain suspended for the period of a Proclamation of Emergency or for a shorter period as may be specified. The Attorney-General argued that when the remedy is suspended with respect to an infringement of Article 22, the right itself also falls away, asserting that right and remedy are reciprocal concepts.

The Court observed that the concepts of a right and its remedy are interdependent. It explained that if a right cannot exist without a remedy, then a remedy cannot exist without a right. To illustrate this principle, the Court referred to the eleventh edition of “Salmond on Jurisprudence,” page 531, under the heading “Ubi jus Ibi Remedium.” The quoted passage stated that whenever a right exists, there must also be an action for its enforcement, meaning that substantive law should determine the scope of procedural law and not the other way round. The passage further required that legal procedure be flexible and comprehensive enough to provide the means necessary to protect all rights recognized by substantive law. The Court noted that in early legal systems the opposite was often true: remedies and forms of action defined the rights, a situation described by the maxim “Ubi remedium ibi jus.” The Court interpreted this to mean that a right belongs to substantive law while a remedy belongs to procedural law, and that where a statute creates a right, a remedy may be implied even if not expressly provided. However, the Court emphasized that the reverse situation—where a remedy creates a right—was characteristic of primitive law and could not be invoked in modern jurisprudence. Consequently, the Court held that suspending a remedy does not eliminate the underlying right.

Turning to the Constitution, the Court examined Articles 358 and 359 and concluded that the framers evidently intended different effects for the two provisions. Article 358 expressly suspends a right, whereas Article 359 suspends only the remedy. The Court rejected the Attorney General’s submission that both articles produced the same result and therefore could be interpreted interchangeably. It reasoned that if the Constitution had intended to suspend the right, it would have used identical language in both articles; instead, it chose distinct expressions to convey distinct intentions. Accordingly, the Court could not accept the contention that the same effect was achieved. The Court also considered another argument advanced by the Attorney General, namely that by allowing the President to suspend the right to approach a court under Article 359, Parliament was implicitly permitted to enact laws that violated those fundamental rights while the right to seek judicial enforcement was suspended. The Court found this argument unpersuasive. It distinguished between suggesting that the broad language of Article 359 might temporarily halt the right to move the court in cases of a void law, and envisioning a constitutional scheme that authorizes Parliament, under executive endorsement, to pass void statutes. A detailed comparison of Articles 358 and 359, which the Court indicated it would address later, demonstrated the contrary. Thus, the Court could not attribute to Parliament any intention to knowingly enact statutes that were constitutionally void.

The Court observed that the impugned legislation might have been enacted in good faith, with the belief that it was authorised by the Constitution. Whatever the intention, the result is that a law which is void now remains on the statute book, and under that law the appellants before this Court have been detained without legal authority. In the words of Lord Atkin, “amid the clash of arms, the laws are not silent; they may be changed, but they speak the same language in war as in peace.” The Court warned that the tendency to disregard the rule of law is contagious, and that if Parliament, having inadvertently created a void law, not only allows that law to stay on the statute book but also permits the executive to enforce it, the contagion may spread to the public and foster a habit of lawlessness that is difficult to eradicate. Although it is not the Court’s primary function, the Court suggested that the Act could be amended so as to bring it into conformity with the Constitution without sacrificing its effectiveness. Consequently, the Court turned to the question of whether the appellants, who are being held illegally, may approach this Court under Article 32 of the Constitution, may invoke the jurisdiction of the High Court under Article 226, or may rely upon section 491 of the Code of Criminal Procedure (hereinafter referred to as the Code). At this juncture the Court found it useful to set out the relevant constitutional provisions. Article 32 provides: “(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. … (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” Article 226 states: “(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.” Article 358 provides: “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 the Part, be competent to make or to take, but any law so made shall, to the extent of the …”

The Court noted that any law made while a proclamation of emergency is in force loses its effect immediately when the proclamation terminates, except where the law concerns actions that were taken or omitted before the moment the law ceased to operate. Article 359(1) provides that, during a proclamation of emergency, the President may, by order, specify particular rights conferred by Part III whose enforcement by any court is to be suspended, and that all proceedings pending in any court for the enforcement of those specified rights shall remain suspended for the duration of the proclamation or for a shorter period that the order may prescribe. Article 33 empowers Parliament to alter the application of the rights in Part III with respect to the Armed Forces or the forces responsible for maintaining public order, while Article 34 authorises Parliament to impose restrictions on the rights in Part III when martial law is in force in any area. The learned counsel for the appellants argued that the construction of these provisions can be understood under three headings. First, they contended that Article 358 allows the State to legislate only to the extent of infringing Article 19, and that Article 359 merely suspends the right to move the court for enforcement of the fundamental rights mentioned in the President’s order; consequently, Article 359 cannot be interpreted so as to expand Parliament’s legislative competence beyond the limits set by Article 358, and its operation should therefore be confined to executive infringements of those rights. Second, they submitted that Article 359 does not permit the executive to commit a constitutional fraud by indirectly doing what Parliament is barred from doing directly under Article 358 and Article 13(2). Third, they maintained that invoking Article 359 requires compliance with two conditions: (i) the party must possess a right to move any court, and (ii) the suspension must relate only to the enforcement of rights conferred by Part III. Since the Constitution expressly grants the right to move the court for such relief under Article 32, the President’s order under Article 359 would, in their view, only suspend the right to move under Article 32 and not the right to approach the High Court under Article 226. They further argued that those words are unsuitable when applied to a pre-existing statutory right under section 491 of the Code. To assess these contentions properly, the Court observed that it is necessary first to understand the nature of the fundamental rights enshrined in the Constitution and the remedies provided for their enforcement. While it would be overly academic to decide whether the fundamental rights in our Constitution are natural rights or primordial rights, the Court emphasized that, irrespective of their origin or source, they are incorporated in Part III and designated as fundamental rights. Finally, the Constitution, under Article 13(2), declares that the State shall not make any law that takes away or abridges those rights, and any law contravening this provision is void to the extent of the inconsistency.

The Constitution declared that any statute which abridges or takes away the fundamental rights enumerated in Part III shall be void to the extent of such contravention, and it then set out the manner in which those rights could be enforced. Article 32(1) provided that a person whose fundamental right has been infringed possessed a guaranteed right to move the Supreme Court by way of appropriate proceedings for the enforcement of that right. Article 32(2) defined “appropriate proceedings” to include the filing of petitions for directions, orders or writs of the kinds described in that clause, and thereby gave a procedural form to the guaranteed right of access to the Supreme Court. Consequently, the right to move the Supreme Court was regulated by the specific procedure prescribed in Article 32(2). Although Article 226 does not appear in Part III, it conferred upon every High Court within its territorial jurisdiction the power to issue directions, orders or writs of the same description for the enforcement of any right derived from Part III. A material distinction existed between Article 32 and Article 226: the former guaranteed a right to approach the Supreme Court, whereas the latter did not expressly guarantee a right of approach to the High Court. Nevertheless, a fair construction of Article 226 implied that, even though the right was not guaranteed, it was nevertheless necessarily implied by the provision of a specific procedure for seeking relief. As noted, Article 32 gave practical content to the right of access by specifying the different modes through which a person could approach the Supreme Court. Article 226 employed an identical procedural framework for approaching the High Court, and that framework must be understood as enabling the exercise of a right to move that court. When the Constitution conferred a power on the High Court and simultaneously prescribed a procedure for a party to invoke that power, it was reasonable to infer that the individual possessed a right to move the High Court in accordance with the prescribed method.

The only discernible difference between the two articles lay in the discretion to decide on merits. While the Supreme Court, once approached in the manner prescribed, could not refuse to consider the merits, the High Court, in exercising its jurisdiction, retained the discretion to decide whether to adjudicate on the merits, an exercise of discretion that was nonetheless guided by established convention and precedent. Article 32(3) further authorized Parliament to enact legislation empowering any other court, within its territorial limits, to exercise any of the powers that the Supreme Court could exercise under clause (2). It was important to note that Parliament could only empower other courts to exercise such powers; it could not confer upon any individual the guaranteed right to move that court as articulated in clause (1). Accordingly, any court or courts given such powers would be placed in a position analogous to that of the High Court, enjoying discretionary jurisdiction but not a constitutionally guaranteed right of access for aggrieved persons.

In this case, the Court observed that the Constitution does not grant any person an absolute, guaranteed right to approach any court other than those specifically authorized for the enforcement of fundamental rights. Instead, a discretionary jurisdiction similar to that of the High Court may be conferred on other courts created by Parliament. For the same reason that an aggrieved party may move the High Court in the manner prescribed, such a party may also move those other courts, provided the procedural requirements are satisfied. From this analysis the Court formulated the following position: under the Constitution every individual possesses a right to move, for the enforcement of a fundamental right, either the Supreme Court, a High Court, or any court or courts established by Parliament, provided the move is made in accordance with the procedural writs, directions, or orders prescribed for that purpose. The Court then examined Article 359 in detail. It noted that the language of Article 359 is clear and unambiguous, identifying three key expressions: (i) “right to move”, (ii) “any Court”, and (iii) “for the enforcement of such of the rights conferred by Part III”. The phrase “any Court” suggests more than one court, but it cannot be interpreted as referring to any court in the country, because the right to move must be a right to approach a court that is empowered to enforce fundamental rights. Consequently, “any Court” can refer only to the Supreme Court, a High Court, or courts constituted by Parliament under Article 32(3). The Court rejected the submission of counsel for the appellants that the term “court” should be limited solely to the Supreme Court, pointing out that Article 359 does not specify either the Supreme Court alone or the guaranteed right under Article 32(1). The Court then turned to the meaning of “right to move”. It observed that this phrase is qualified by the words “for the enforcement of such of the rights conferred by Part III”, meaning that the right to move must be a right to approach the Supreme Court or a High Court in accordance with the procedures laid down in Article 32(2) or Article 226(1) for the enforcement of fundamental rights. The Court further explained that the second limb of Article 359, which states that “all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended”, refers only to proceedings instituted under the exercised right and does not clarify the scope of the “right to move”. By construing the provision in this manner, the Court gave full effect to each expression used in Article 359. Accordingly, the Court concluded that a temporary bar imposed by a Presidential order under Article 359 is not confined solely to the guaranteed right of a person to move the Supreme Court for enforcement of his fundamental rights; the bar also extends to the right of a person to move a High Court or any court or courts created by Parliament for the same purpose.

In this case the Court observed that the President’s order issued under Article 359, which suspended the right to move any court with respect to the particular fundamental rights identified in the order, covered not only the right to move the Supreme Court under Article 32 but also the right to move a High Court under Article 226. The Court then identified a more difficult issue, namely whether Article 359 could be interpreted to give the President the power to suspend every legal action that a person might pursue under a statute or at common law when the person sought to protect his personal liberty from unlawful intrusion by the State or its officials. Put differently, the Court asked whether a person who was detained unlawfully under a void law could still approach the High Court under section 491 of the Code of Criminal Procedure, could file a civil suit for damages for illegal confinement, or could initiate any other legal proceeding that was otherwise available to him. The learned Attorney General advanced the proposition that the words “any court” in Article 359 should be understood to mean any court in India, and that the phrase “enforcement of fundamental rights” should be read to include any relief sought by a party whenever the grant of such relief required the court, directly or indirectly, to decide whether any of the fundamental rights listed in the President’s order had been infringed. The Court noted that this submission disregarded the constitutional framework, which distinguishes three categories of rights: (i) fundamental rights, (ii) constitutional rights, and (iii) statutory or common-law rights. Under Article 32(1) a person possessed a fundamental right to approach the Supreme Court for the enforcement of his fundamental rights, whereas under Article 226 a person possessed a constitutional right to approach a High Court for the enforcement of those rights. The Court further explained that Parliament, exercising the powers conferred upon it by Article 245, could legislate to grant a person the right to approach any court for relief that was broader in scope than that provided by Articles 32 or 226. Although Parliament could not legislate to curtail the fundamental rights enumerated in Part III except in the limited situations expressly provided for, it could enact statutes that expanded the substantive and procedural rights of parties beyond those guaranteed by Part III. The Court added that statutes or rules enacted by a competent authority before the Constitution came into force, but which continued to have effect under Article 372, did not in any manner infringe the fundamental rights created by the Constitution. Section 491 of the Code of Criminal Procedure was identified as one such pre-Constitutional provision that survived under Article 372 and, as such, it did not in its terms create any right to move a High Court for the enforcement of fundamental rights. Consequently, the Court held that the Attorney General’s argument placed an unreasonable strain on the clear language of Article 359, because it effectively attempted to equate the expression “a right to move for the enforcement of fundamental rights” with any relief sought in any proceeding.

The Attorney General maintained that, even in circumstances of extreme stress such as a declared emergency arising from a threat of war, a court must apply a principle of “strained construction” to any proceeding that concerns the validity of a law on the ground that it infringes the fundamental rights referred to in the President’s order. He argued that this principle should apply regardless of whether a case is commenced by an aggrieved party, initiated by another person, or even taken up suo motu by the court itself, provided that the proceeding requires the court to decide whether the impugned statute is void for contravening the constitutional rights protected by the presidential proclamation. To support this position, the Attorney General urged the Court to accept that, in times of national emergency, the doctrine of strained construction serves the purpose intended by Article 359 of the Constitution and the presidential order that invoked it.

The Court then proceeded to examine the authorities cited by the Attorney General to determine whether any recognized doctrine of statutory construction fitting his description actually exists. The first case considered was Rex v. Halliday, a decision of the House of Lords rendered in 1917 during the First World War. The case concerned Regulation 14B of the Defence of the Realm (Consolidation) Regulations, 1914, which authorised the Secretary of State to order the internment of any person of hostile origin or association when a competent naval or military authority recommended that such action was expedient for public safety or the defence of the realm. This regulation derived its authority from section 1, subsection 1 of the Defence of the Realm Consolidation Act, 1914. By a majority, the House of Lords held that the Act conferred upon the King-in-Council the power, for the duration of the war, to issue regulations aimed at securing public safety and the defence of the realm, and consequently that Regulation 14B was valid. It was contended that no restriction on personal liberty should be imposed without judicial scrutiny and that, if the legislature intended to curtail liberty, it should have expressly provided for the suspension of the right to a writ of habeas corpus. The Court rejected this argument. Lord Atkin observed that a subject retains every right conferred by statutes to have his detention tested and determined in a court of law by means of a writ of habeas corpus addressed to the custodian, allowing the legality of the order or warrant to be examined. He further noted that if the legislature chooses to enact a provision permitting deprivation of liberty, such enactment and any orders made under it, when within the scope of legislative authority, do not infringe upon the Habeas Corpus Acts or the rights granted by Magna Carta, because the statutes and the orders become part of the law of the land. The decision, however, did not establish any novel rule of construction; it simply affirmed parliamentary supremacy in England and, in its wisdom, did not withdraw the habeas corpus remedy but authorised the executive to issue regulations for public safety and defence, provided that such regulations did not exceed the Parliament’s conferral of power. Consequently, the House of Lords concluded that the detention was lawful and in accordance with the statute.

The Court explained that the writ of habeas corpus remained intact, but Parliament had authorised the executive to issue regulations aimed at public safety and the defence of the nation. The regulation in question was held not to exceed the authority that Parliament had conferred. Accordingly, the House of Lords had found that the detention was made in accordance with law. The Court further observed that the controversial decision in Liverside v. Sir John Anderson (1) did not establish any new rule of construction, despite having attracted severe criticism in later years. In that case the Secretary of State, acting in good faith under regulation 18B of the Defence (General) Regulations, 1939, issued an order stating that he had reasonable cause to believe a person was associated with hostile elements and that, on that basis, it was necessary to exercise control over that person and direct his detention. The legality of the detention depended upon the interpretation of the explicit wording of regulation 18B.

Regulation 18B employed the phrase “reasonable cause to believe any person to be of hostile origin”. By a majority, the House of Lords held that this phrase meant “the Secretary of State thinks fit to be reasonable”. Although there was a strong dissent by Lord Atkin on the matter of construction, the Court noted that it was not concerned with assessing the correctness of the majority’s construction. Importantly, none of the Law Lords introduced a novel rule of construction that was specific to wartime conditions. Viscount Maugham remarked that the court should approach the construction of regulation 18B without any special presumption, except the universal presumption that applies to Orders in Council and similar instruments: if reasonable doubt exists about the meaning of the words, the court should prefer a construction that effectually carries out the plain intention of those who made the Order rather than one that defeats that intention. In his dissent, Lord Atkin protested against a strained construction that would grant the minister unchecked power of imprisonment, observing that “the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.” The dissenting observations suggested that the majority may have imposed a strained construction on the regulation’s express words, but they did not demonstrate the creation of any new rule of construction. Lord Macmillan clarified that although the regulation was a war measure, this does not imply that courts should adopt wartime canons of construction different from those applied in peace time.

In discussing the interpretation of statutes, the Court observed that the existence of war did not permit a reduction in judicial vigilance to ensure that the law was properly applied, particularly when fundamental liberty was at stake. The Court noted that during an emergency in which the nation's survival was threatened, a regulation intended for the defence of the realm could legitimately be given a meaning that, due to its severe impact on individual liberty, might not be as readily attributed to a measure enacted in peacetime. The purpose of such a regulation, the Court explained, was to safeguard public safety, and it was appropriate to interpret emergency legislation in a manner that advanced rather than undermined its effectiveness for national defence. The Court further stated that this approach conformed to a general rule of interpretation that applied equally to statutes and regulations whether they were enacted in peacetime or wartime. These observations were to be read in the context of an earlier remark that the critical phrase under consideration was not confined to a single meaning favoured by the appellant, and that it would be surprising if several learned judges had arrived at a substantially different interpretation. Consequently, the Court concluded that the judgment in question could not be treated as authority for the position for which it was cited. In substance, the decision affirmed that the rule of statutory construction remained the same in both peacetime and wartime, and that when expressions were ambiguous, the courts could adopt a meaning capable of furthering the legislation’s purpose rather than defeating it. The Court cited the Privy Council decision in Nakkuda Ali v. Jayaratna, which limited the interpretation of regulation 18B of the Defence (General) Regulations, 1939, to the specific facts of that case and refused to extend that construction to similar wording in regulation 62 of the Defence (Control of Textiles) Regulations, 1945. Accordingly, the Court rejected the view that those decisions introduced a new rule of construction unique to war measures. It reaffirmed that the fundamental rule of construction required courts to discern the legislature’s expressed intent from the enactment’s words themselves; where language was clear, the court merely gave effect to its ordinary meaning, while where language was reasonably ambiguous, the court was justified in selecting the interpretation that would promote the legislative intention rather than obstruct it. The Court noted that the present matter did not involve a wartime measure but a constitutional provision.

In this case the Court observed that a constitutional provision is intended to regulate the affairs of the nation for all time, so long as the Constitution remains in force, and it cannot be stretched to accommodate a fleeting circumstance in a country’s history. The Court noted that a strained interpretation applied to a statutory provision in order to address a specific emergency may be corrected by a later enactment, but that the same approach when applied to a constitutional provision could have serious repercussions. The Court further remarked that even if Liversidge’s case (1) had established a new rule of construction, that rule could not be applied to a constitutional provision. Citing Gibbons v. Ogden (2), the Court reiterated the established rule of construction for constitutional instruments: “That which the words declare is the meaning of an instrument; and neither Courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay absolutely certain, that the people did not intend what the language they have employed in its natural significance, imports, before a Court will feel itself at liberty to depart from the plain reading of a constitutional provision.” The Court acknowledged that a constitution should be given a fair, liberal and progressive construction so that the true objects of the instrument are promoted, yet such a construction must not violate the natural meaning of the words used in any specific constitutional provision. The Court then turned to the relevant provisions of section 491 of the Code, which state: “Any High Court may, whenever it thinks fit, direct—(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.” Keeping the aforementioned rules of construction in mind, the Court asked whether the exercise of the power under section 491 of the Code could be equated with a right to move the High Court to enforce any of the fundamental rights conferred by Part III of the Constitution that may be specified in the President’s order. The Court found it necessary to determine the correct scope of the section to answer the question presented. It observed that the section is framed in broad terms and confers a discretionary power on the High Court to direct either of the actions mentioned, “whenever it thinks fit.” Unlike Articles 32 and 226, the exercise of this power is not channeled through well-recognized procedural writs or orders, and consequently the technicalities associated with such procedural writs do not govern or limit the Court’s discretion.

The Court explained that the discretionary power granted to a High Court by section 491 of the Code of Criminal Procedure is not limited by the technicalities of traditional writ procedures. A brief historical review supports this view. Initially, the Supreme Courts in India claimed authority to issue the writ of habeas corpus, a power that the King’s Bench Division in England exercised. In 1861 Parliament enacted the Acts 24-25 Vict. Ch. 104, which authorized the establishment of High Courts of judicature in India. The Letters Patent issued under that Act in 1865 expressly subjected the High Courts to the legislative powers of the Governor-General in Council. Consequently, the High Courts received the same jurisdiction, power and authority as the Supreme Courts, but only to the extent that the Governor-General in Council allowed. Exercising that legislative authority, the Governor-General in Council promulgated successive Codes of Criminal Procedure in 1872, 1875, 1882 and 1898, and later amended certain provisions of the 1898 Code by the Criminal Law (Amendment) Act of 1923. The High Courts Act of 1861 also gave the Legislature the discretion, if it deemed fit, to remove the powers that the High Courts had inherited as successors to the Supreme Courts. Subsequent legislative enactments of 1872 and later years withdrew the High Courts’ prerogative writ powers and instead created a precisely defined statutory power, which eventually took its present form as section 491 of the Code. Attempts to revive the prerogative writs were rejected by the Calcutta High Court in Girindra Nath Banerjee v. Birendra Nath Pal (1) (1927) I.L.R. 54 Cal. 727, and by the Madras High Court in District Magistrate, Trivandrum v. Mammen Mappillai (1). The Privy Council, in Matten v. District Magistrate, Trivandrum (2), affirmed those decisions, holding that the statute had removed the High Courts’ authority to issue prerogative writs and that the only remaining power was the one conferred by the statute. Under Article 372 of the Constitution, the Code of Criminal Procedure, including section 491, continued in force until altered, repealed or amended by the competent legislature or other authority. Article 225 of the Constitution expressly preserved the High Courts’ powers and jurisdiction, subject to other constitutional provisions. Parliament has not enacted any law repealing section 491, and the statutory power it confers is not inconsistent with Article 32, Article 226, or any other provision of Part III or any other chapter of the Constitution. Therefore, it cannot be said that section 491 has been impliedly superseded by Article 226, even to the extent that it enables a High Court to grant relief to persons illegally detained by the State. The Court then considered the scope of that section, noting that although section 491 is remedial in form, it presupposes the existence of a substantive right. In India,

In the judgment, the Court observed that, similar to the position in England, the rule of law was long recognized as the governing principle. Accordingly, no individual could be deprived of liberty except in the manner prescribed by the law of the land. The Court explained that when a person was detained illegally or improperly, the High Court possessed the authority to order that person’s release whenever the Court deemed it appropriate. The provision under discussion, the Court noted, did not initially require a formal application nor did it mandate that a specific individual must approach the Court. The language of the provision was sufficiently broad to permit the High Court to act suo motu, that is, on its own initiative, upon receiving information that a person was being held unlawfully. The Court further clarified that the provision did not create a conflict between jurisdiction exercised on an application and jurisdiction exercised suo motu. Thus, even if an application had been filed before the High Court and, for some reason, no order could be issued because of a procedural defect or because the application was not pursued, nothing barred the Court from acting suo motu based on the information presented to it. The Court cited earlier reports, namely L.I.R. 1939 Mad. 708 and L.R. (1939) 66 I.A. 222, to support this view. Although various High Courts had formulated procedural rules for themselves, the Court held that such rules were not materially relevant for interpreting the provision. In summary, the High Court was vested with absolute discretion to order the release of any person who was illegally detained, whenever that fact was brought to the Court’s notice by any source.

The Court then contrasted this historic jurisdiction with the rights created by the Constitution. It observed that the substantive and procedural rights conferred under Part III of the Constitution and Article 226 differed from the authority granted by section 491 of the Code of Criminal Procedure. Under Articles 32 and 226, an aggrieved party could approach the Supreme Court or the High Court only in the manner prescribed by those articles, namely by seeking appropriate writs or orders, and had to demonstrate that a fundamental right existed, that the right had been infringed by the State, and that the Court should grant relief to enforce that right. Both the right and its procedural mechanism were creations of the Constitution. By contrast, section 491 of the Code presupposed the existence of the rule of law and empowered the High Court to release persons detained illegally without being bound by the technical procedural requirements envisaged in the Constitution. When a person—or someone acting on his behalf—came before the High Court alleging illegal detention, the Court would require the detaining authority to justify the legality of the detention. The burden of proving that the detention was authorized by law rested on the custodian of the detained individual.

In the matter before the Court, the detention authority was required to demonstrate that the individual was being held pursuant to a legal process. If the authority could not establish that the detention was founded on law, the detainee was required to be released. The Court observed that the detaining authority must satisfy the tribunal that the statute or rule on which the detention is based is a valid law. The Court further noted that, in examining the validity of that law, it may be necessary for the Court to consider whether the law contravenes any of the fundamental rights enumerated in Part III of the Constitution. However, the Court emphasized that such an examination does not, by any stretch of reasoning, transform the proceeding into a suit filed for the enforcement of the petitioner's own fundamental right. The distinction, according to the Court, lies in the fact that one proceeding seeks to enforce a specific petitioner’s fundamental right, whereas the other concerns a determination of the unconstitutionality of a law on the ground that it infringes fundamental rights in a general sense. Moreover, the Court stressed that the right and the relief contemplated by the Constitution possess a technical and specific significance, and they cannot be equated with the procedural mode of approaching the High Court under section 491 of the Code, nor with the expression “whenever it thinks fit,” which confers an absolute discretion on the Court to exercise its power according to the circumstances of each case. While the word “may” in a statute is sometimes interpreted as imposing a duty on the authority to act when circumstances require, the phrase “whenever it thinks fit” does not impose any such limitation on the Court’s absolute discretion. Although ordinarily a High Court can be relied upon to intervene when a citizen’s liberty is illegally violated, the Court’s unfettered discretion also permits it, in extraordinary situations, to decline to provide relief. Consequently, the absolute discretionary jurisdiction created by section 491 of the Code cannot be placed on a parity with the jurisdiction conferred by Article 226 of the Constitution, which is subject to constitutional constraints. To illustrate this point, the Court referred to decided cases concerning the scope of section 491. In Alam Khan v. The Crown (1), the Full Bench of the Lahore High Court defined the scope of the provision, with Justice Ram Lall, speaking for the majority, after quoting the relevant part of the section, stating: “The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the High Court on hearing the petition thinks fit to do so, may make an order that he be dealt with according to law.” (1) (1947) I.L.R. 28 Lahore 274, 303. The Court further mentioned that a similar Full Bench decision was rendered in Ramji Lal v. The Crown (1) by the East Punjab High Court.

The Court explained that Section 491 of the Criminal Procedure Code is drafted in extremely wide terms and therefore confers a broad jurisdiction on the High Court to issue directions whenever it deems appropriate. According to the judgment of Mahajan, J., the court may be approached either by the prisoner himself, by a relative of the prisoner, or it may act on its own motion if it becomes aware that a person is being detained unlawfully. The manner in which the judge must be satisfied of the facts does not limit the jurisdiction that Section 491 grants. In the case of King Emperor v Vimlabai Deshpande, a police officer had made an arrest under sub-rule I of Rule 129 of the Defence of India Rules, 1939, which authorised any police officer to arrest without a warrant any person whom he reasonably suspected of acting in a manner prejudicial to public safety or to the efficient prosecution of the war. The Judicial Committee held that the onus was on the police officer to prove to the satisfaction of the court, before whom the arrest was challenged, that there were reasonable grounds for suspicion. If the officer failed to discharge this burden, an order made by the Provincial Government under sub-rule 4 of Rule 129 for the temporary custody of the detainee would be invalid. Because the police officer could not meet the burden, the Privy Council affirmed that the High Court was correctly empowered to order the release of the person from custody under Section 491 of the Code of Criminal Procedure. This authority demonstrates that when a person is detained by a police officer, the responsibility for establishing the legality of the detention rests with the officer. The cited authorities further clarify that Section 491 does not create any statutory right for an affected party to move the court; rather, the court may exercise its statutory power whenever it is made aware of an illegal detention. The discussion may be reframed by posing three questions: (1) does any person have a right to invoke Section 491 to enforce a fundamental right? (2) must a detained person or his representative allege that a fundamental right has been infringed by the State and seek relief for its enforcement? (3) is the court obligated to enforce the right if it is established? The Court answered all three questions in the negative. Under Section 491 there is neither a right for the detained individual to approach the High Court for enforcement of a fundamental right nor an obligation on the High Court to grant such relief. The provision provides only a discretionary jurisdiction intended as a safeguard against arbitrary governmental action.

In this case, the Court observed that there is no fundamental right granted to a detained person to move the High Court for relief, nor is the High Court under any obligation to grant such relief. The jurisdiction of the High Court in this context is merely a discretionary power intended to serve as a check on arbitrary action. The Court then turned to another aspect of the question, namely the relationship between Article 359 of the Constitution and the statutory powers conferred by Parliament. It held that Article 359 does not concern the statutory powers created by Parliament; rather, Article 359 deals expressly with the constitutional right to approach a court and the constitutional enforcement of that right. Regarding ordinary legislation, the Court noted that Parliament retains the authority to amend statutes in accordance with the circumstances prevailing at any given time. For example, Parliament could have altered section 491 of the Code by repealing it altogether or by amending its provisions. In brief, the Court explained that Article 359 provides for the suspension of certain constitutional rights in the manner prescribed by that article, while the matters of statutory rights remain within the competence of the appropriate Legislature exercising the powers vested in it. The Court rejected the argument that the purpose of the Constitution’s makers in enacting Article 359 would be frustrated if section 491 of the Code were preserved. It observed that, had Parliament intended to preserve section 491, it could have amended the provision, and consequently the alleged inconsistency highlighted by the learned Attorney General would not have arisen. Accordingly, the Court held that the expression “rightto move any Court for the enforcement of such of the rights conferred by Part III” can be understood only as referring to the constitutional right to move under Article 32 or Article 226 for the specific relief contemplated, and that it cannot be extended without violating the language used for the statutory power granted to High Courts under section 491 of the Code. The Court further reasoned that, if this interpretation is accepted, the phrase “all proceedings pending in any Court for the enforcement of the rights” appearing in the second limb of Article 359 must necessarily refer to proceedings initiated under the constitutional right to move described in the first limb of the article. The Court then indicated that it would address some of the minor points raised by counsel. It also noted another argument presented on behalf of the respondents, which contended that while Article 358 bars the legislature from making laws that diminish fundamental rights other than those in Article 19, Article 359 purportedly allows the President, by an indirect process, to broaden that legislative competence, and therefore Article 359 should be read as limited to executive actions. The Court rejected this contention, stating that Article 359 does not, on its face, expand the legislative competence of Parliament or a State Legislature. It does not permit the enactment of laws during the period covered by the President’s order that would infringe the specified fundamental rights, nor does it empower legislatures to pass void laws; its sole effect is to allow the President to suspend the right to approach a court for the duration of the specified period.

According to the Court, the suspension of the right to move a court mentioned in the President’s order continues only for the period that is expressly indicated in that order. When that period comes to an end, the person whose right has been curtailed may again approach the courts in the manner that the Constitution prescribes. The Court observed that, even though Article 358 prevents legislation that contravenes fundamental rights, it is possible that laws which are void, or executive actions that infringe rights, may still be enacted inadvertently or otherwise. Article 359, therefore, is intended to defer the enforcement of the rights of those affected by such void laws or unlawful executive acts until the expiry of the President’s suspension order. The Court noted that this view becomes evident if one remembers that Article 358 also excludes executive acts that violate Article 19, yet Article 359 nonetheless shields a person from invoking the right to move any court with respect to those executive acts that are not saved by Article 358. Accordingly, if an executive action that infringes a fundamental right and is not protected by Article 358 cannot give rise to a right to approach the court during the suspension, then, by the same reasoning, a law that is not protected by Article 358 likewise cannot provide a basis for such a court-approach during the same period. The Court further held that the wording of Article 359 is sufficiently broad to encompass laws that are enacted in violation of the specified fundamental rights.

The Court then turned to an argument that the President’s order, by effectively validating laws that infringed Articles 14, 21 and 22, amounted to a fraud on his constitutional powers. The Court rejected this contention, describing it as based on a misunderstanding of the doctrine of fraud on powers. Citing the decision in Gullapally Nageswara Rao v. Andhra Pradesh Road Transport Corporation (1), the Court reiterated that a legislature may legislate only within the scope of its competence, which may be limited by explicit legislative entries or by the fundamental rights enshrined in the Constitution. The Court explained that the judiciary will examine whether a law, though apparently within legislative authority, in substance exceeds that authority. If the legislature indeed has the power to make the law, the motives behind its enactment are irrelevant. The Court indicated that a similar principle was expressed in Gajapati Narayan Deo v. The State of Orissa (2). Applying the same analogy to the President, the Court stated that the President cannot exceed the limits imposed by Article 359. Consequently, an order that is issued within those constitutional limits cannot be regarded as a fraud on his powers. The Court clarified that a fraud on power occurs only when a power that has not been conferred is exercised under the pretense of a conferred power; but when an act is legitimately exercised under a conferred power, the intention of the actor is irrelevant.

The Court observed that when an act can be properly referred to a power that has been conferred, the motive or intention of the person exercising that power, as well as the effect of its exercise, become irrelevant. On the interpretation given by the Court to Article 359, it held that the President unquestionably possessed the constitutional authority to suspend the right in question. The Court further stated that the mere possibility that Parliament might, by relying on that presidential order, enforce statutes that are void did not render the President’s legitimate exercise of his power fraudulent. The next contention advanced before the Court was that the presidential order exceeded the authority granted by Article 359 of the Constitution. According to that argument, an order issued under Article 359 could pertain to a period of time or to the whole or a part of the territory of India, but it could not be limited to a particular class of persons. Because the order was said to be limited to individuals who had been deprived of their rights under the Defence of India Ordinance, the petitioners argued that such limitation was not authorised by Article 359. The Court found no merit in that submission. It explained that the order suspended the right to move the Court for enforcement of the specified rights for the duration of the emergency, and that suspension applied uniformly throughout the entire country. The Court noted that although only those persons who had been deprived of their rights under the Defence of India Ordinance were unable to approach the Court, this circumstance did not convert the order into one that was confined to a class of persons. The Ordinance itself possessed nationwide force, and, hypothetically, only the persons affected would seek relief in the Court; this hypothetical situation did not transform the order into a class-based restriction. The Court then considered the further allegation that the impugned section suffered from excessive delegation and that the rules framed thereunder went beyond the powers conferred on the Government by the enactment. The Court rejected both of those allegations and indicated that it had nothing further to add to the observations made in the judgment of the learned colleague. Nevertheless, the Court observed that the presidential order still left open the possibility of addressing certain questions under Article 32 or Article 226 of the Constitution. The order was described as a conditional one: it stipulated that the right remained suspended for any person who had been deprived of that right under the Defence of India Ordinance, 1962, or under any rule or order made thereunder. The condition required that the deprivation arise specifically from the Ordinance or a rule or order issued under it. Consequently, if a person’s deprivation did not stem from the Ordinance or a rule made thereunder, his right would not be suspended. The Court further noted that, should the order have been made beyond the powers conferred on the Government by the relevant enactment, it would not be covered by the presidential order.

The Court explained that if a detention order was issued beyond the authority granted by the Defence of India Ordinance, such an order would not fall within the scope of the President’s declaration. Likewise, a detention that was carried out with dishonest intent would also not be considered an order issued under the Ordinance. Based on this discussion, the Court stated three principal points. First, any person detained under the President’s order could not invoke the fundamental rights guaranteed by Articles 21, 22 and 14 of the Constitution during the period for which the President had suspended those rights. Second, the Court clarified that this suspension did not prevent the High Court, exercising its power under section 491 of the Code of Criminal Procedure, from releasing a detainee if the detention was founded on a law that was void because it violated the same constitutional rights under Articles 14, 21 and 22. Third, the Court observed that the President’s order did not bar the petitioners, even when invoking Articles 32(1) and 226 of the Constitution, from demonstrating that the detention orders were not made pursuant to the Defence of India Ordinance or the corresponding Act. The petitioners could show that the orders were either issued outside the limits of the Ordinance or the Act, exceeded the powers conferred by those provisions, or were effected in bad faith or through fraudulent use of authority. The Court then made a few observations on the legislative options available. It noted that Parliament could either enact a valid statute that respects all fundamental rights except those protected under Article 19, amend section 491 of the Code to facilitate the enforcement of laws that are later declared void, or pursue both measures. The Court refrained from prescribing which path Parliament should follow. Consequently, the Court directed that the petitions be transferred to a Constitution Bench for determination of the remaining questions. Accordingly, the constitutional issues raised in the appeals were dismissed in line with the majority opinion, and each appeal was to be listed separately before the Constitution Bench for further consideration of the other matters raised.