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: 2 September 1963

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

In this case the Court noted that a group of twenty‑six criminal appeals had been placed before a special Constitutional Bench because the appeals raised two common and important constitutional questions. Nine of the appeals challenged decisions of the Punjab High Court and the remaining seventeen challenged decisions of the Bombay High Court. All of the appellants were persons detained by the governments of Punjab and Maharashtra under Rule 30(1)(b) of the Defence of India Rules, which had been issued by the Central Government exercising the power granted by section 3 of the Defence of India Ordinance, 1962 (No 4 of 1962). The detainees had filed applications in the Punjab and Bombay High Courts under section 491(1)(b) of the Code of Criminal Procedure, contending that their detention was improper and illegal. They argued that section 3(2)(15)(i) and section 40 of the Defence of India Act, 1962 (No 51 of 1962), together with Rule 30(1)(b) under which they were held, were void because they infringed the fundamental rights guaranteed by Articles 14, 21 and 22(4), (5) and (7) of the Constitution. Accordingly they requested that the Court issue orders directing the respective State Governments to release them. The High Courts dismissed the petitions on the ground that a Presidential order issued under article 359 of the Constitution created a bar preventing the detainees from invoking section 491(1)(b) of the Criminal Procedure Code. The decisions of the two High Courts therefore raised two consequential questions. The first question concerned the true scope and effect of the Presidential order made under article 359(1); the correct answer required a fair and reasonable construction of article 359(1) itself. The second question asked whether the bar created by the same Presidential order applied to applications filed by detainees under section 491(1)(b) of the Code. Determining the answer depended on ascertaining the true nature of the proceedings initiated under section 491(1)(b) in light of the effect of the Presidential order. Both the Punjab and the Bombay High Courts had ruled against the appellants. The Court also observed that similar petitions had been filed before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963 (Sher Singh Negi v. District Magistrate, Kanpur & Anr.), where a contrary view had been taken and the detainees were directed to be released.

The High Court, in the matter of Magistrate, Kanpur and another, adopted a view that differed from the decisions of the two other High Courts. It directed that the detenues, who had filed applications under section 491(1)(b) of the Code of Criminal Procedure, be released. Because the questions raised in these proceedings were considered important and because the answers rendered by the various High Courts displayed a sharp difference of opinion, a Special Bench was constituted to consider the appeals arising from those judgments. The Special Bench was tasked with answering two principal questions, and the Court observed that if the answers to those questions were rendered in favour of the detenues, a further question would inevitably arise. That third question would concern the validity of the specific sections of the Act that had been challenged, together with the statutory Rules that were relevant to those sections.

On 8 September 1962, Chinese forces launched an aggressive attack on India’s northern border, creating a serious threat to the security of the nation. In response to that threat, the President issued a proclamation on 26 October 1962 under article 352 of the Constitution, declaring that a grave emergency existed because the security of India was threatened by external aggression. On the same day, the President promulgated an Ordinance. This Ordinance was subsequently amended by Ordinance No 6 of 1962, which was issued on 3 November 1962. Also on that date, the President issued an Order under article 359(1) of the Constitution, which suspended the citizens’ right to approach any Court for the enforcement of the rights conferred by articles 21 and 22 for the period during which the proclamation of emergency remained in force.

The Central Government published the Rules that were to operate under the Ordinance on 6 November 1962. An amendment to the Presidential Order was made on 11 November 1962, whereby the reference to “article 21” was replaced with the reference to “articles 14 and 21”. On 6 December 1962, Rule 30, as originally framed, was amended and a new Rule 30‑A was inserted. The Act itself came into force on 12 December 1962. Section 48(1) of that Act provided for the repeal of Ordinances 4 and 6 of 1962. However, section 48(2) stipulated that, notwithstanding the repeal, any Rules made, any act performed, or any action taken under those two Ordinances would be deemed to have been made, performed, or taken under the Act as if the Act 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 under Rule 30(1)(b) that the appellants had been detained.

Before addressing the specific points raised for decision in the present appeals, the Court found it necessary to set out briefly the general arguments advanced on behalf of the appellants by counsel, as well as the arguments presented by the learned Attorney‑General for the opposite side. The provision of article 359(1) that required interpretation is situated in Part XVIII of the Constitution, which contains the emergency provisions. The provision becomes applicable whenever the security of India, or any part of its territory, is threatened, whether by war, external aggression, or internal disturbances.

The President was authorized, under Article 352, to issue a proclamation declaring an emergency. Articles 353 through 360, which are contained in the same part of the Constitution, together form the body of emergency provisions. The counsel for the State argued that when a provision such as Article 359(1) is interpreted, the court must remember that the provision was intended to address a situation that threatens the security of India. Accordingly, the counsel maintained that fundamental rights guaranteed by Part III, although essential to the democratic system, must be subject to regulation during an emergency because the nation’s security faced serious jeopardy. The counsel further asserted that on a solemn occasion when national security is at stake, the interest of the nation must take precedence over the liberty of individual citizens. Consequently, the counsel urged that if Article 359 could be understood in two ways—one protecting the fundamental rights of citizens and the other empowering the President to limit those rights—the court should prefer the interpretation that gives the President such power. To support these submissions, the counsel for the State relied on two decisions of the House of Lords. In the case titled The King (At the Prosecution of Arthur Zadig) v. Halliday, reported in [1917] A.C. 260 at page 270, Lord Finlay, L.C., was asked to interpret Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act, 1914. Lord Finlay observed that if the legislature had intended to interfere with personal liberty, it would have provided for the suspension of the right to a writ of habeas corpus, as had been done in earlier periods of national danger, and he rejected that argument. He added that the legislature had chosen a different method, which was “the Legislature had selected another way of achieving the same purposes, probably milder as well more effectual than those adopted on the occasion of previous wars.” He further noted that the rules concerning the construction of penal statutes and the provision for trial of British subjects by jury under the Defence of the Realm Act, 1915, were irrelevant to an executive measure aimed at preventing a public danger. The counsel also cited the majority judgment of the House of Lords in Liverside v. Sir John Anderson, reported in [1942] A.C. 206, which required the court to determine the true scope and effect of Regulation 18B of the Defence (General) Regulations, 1939. In that case, Viscount Maugham dismissed the detainee’s contention that the liberty of the subject was involved and that legislation affecting that liberty must be interpreted, wherever possible, in favour of the subject and against the Crown. Viscount Maugham quoted Lord Finlay’s language from the Halliday case with approval, and Lord Macmillan, agreeing with that approach, observed, “it is right so to interpret emergency legislation as to promote.” The counsel thus argued that these authorities supported a construction of Article 359 that favoured the exercise of presidential power during a declared emergency.

In this passage, the Court explained that statutes dealing with defence of the realm should be interpreted so as to further, not hinder, their effectiveness. This principle applies to every statute or regulation, whether enacted in peacetime or wartime. Lords Wright and Romer applied the same interpretive rule. The Attorney‑General pointed out that the same approach had been adopted earlier by Chief Justice Gwyer in the decision Keshav Talpade v. The King Emperor. Relying on that precedent, the Attorney‑General argued that the correct method for construing Article 359 was already settled, because a question of interpretation would arise only when two reasonable meanings were possible. He maintained that Article 359 possessed a single meaning, namely the meaning that had been accepted by the High Courts of Punjab and Bombay. Conversely, counsel for the petitioner, Mr Setalvad, contended that Article 359 was not proper emergency legislation. He challenged the Attorney‑General’s suggestion that, when two reasonable constructions exist, the Court should prefer the construction that enhances the President’s power rather than the construction that safeguards citizens’ fundamental rights. Mr Setalvad relied upon the dissenting speech of Lord Atkin in Liversidge v. Secretary of State for Home Affairs ([1942] A.C. 206). He urged that Lord Atkin’s view should be given priority over the majority opinion of the House of Lords in that case. Lord Atkin had observed that, even in times of armed conflict, the law does not become silent; the language of the law remains the same in war as in peace. He asserted that a fundamental principle of liberty requires judges to remain impartial guardians of individual freedom, intervening between the subject and any executive attempt to encroach upon liberty, and ensuring that any coercive action is legally justified. Lord Atkin also recalled arguments that could have been presented to the Court of King’s Bench during the reign of Charles I. Aware that his opinion was in the minority, Lord Atkin protested, even if he stood alone, against a strained construction that would grant the Minister uncontrolled power of imprisonment. Mr Setalvad further cited two later Privy Council decisions that upheld Lord Atkin’s viewpoint: Nakkuda Ali v. M. F. De. S. Jayaratne ([1951] A.C. 66, 76) and King‑Emperor v. Vimalabai Deshpande (73 I.A. 144). In Nakkuda Ali, Lord Radcliffe warned that it would be regrettable if the Liversidge decision were taken to establish a general rule for interpreting such statutory phrases, emphasizing that the majority’s detailed analysis of context and circumstances showed no universal principle.

In the judgment, the Court noted that a previous decision served as authority for the view that the phrase “if A. B. has reasonable cause to believe” could be understood to mean “if A. B. honestly thinks that he has reasonable cause to believe.” The Court further observed that, within the factual setting and surrounding circumstances of Defence Regulation 18 B, those words were indeed intended to convey exactly that meaning. While distinguishing that earlier case, Lord Radcliffe remarked that the extensive analysis given by the majority of the House to the context and circumstances before arriving at that construction demonstrated that no universal rule required such words to be interpreted in that manner. The Court also recorded that counsel for the petitioner, Mr. Setalvad, drew its attention to the fact that the majority judgment of the House of Lords in Liversidge ([1942] A.C. 206) had not been endorsed by legal scholars, citing 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 similar vein to the Attorney‑General, Mr. Setalvad argued that the need to choose between two rival constructions would not arise in the present appeals because, in his view, the construction he advanced was the sole reasonable construction of Article 359.

The Court expressed the opinion that it was unnecessary to adjudicate the merits of the opposing contentions concerning the rule of construction and the method the Court should employ in construing Article 359. It observed that the question of approach would become relevant only if Article 359 could reasonably be understood in two different ways. After hearing counsel for both sides, the Court concluded that Article 359 could be understood in only one way, namely the interpretation previously adopted by the Punjab and Bombay High Courts. Consequently, the Court found itself relieved of the duty to resolve the parties’ dispute on that point. Turning then to the construction of Article 359, the Court considered it useful to compare Articles 358 and 359. Both counsel for the petitioner and the learned Attorney‑General maintained that Article 359 should be read in the context provided by a comparative examination of the provisions contained in Articles 358 and 359(1) and (2). The two articles were set out 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 not for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases, to operate, except as respects things done or”.

Article 359, clause (1), states that when a Proclamation of Emergency is in force, the President may issue an order declaring that the right to approach any Court for the enforcement of those rights in Part III which are specified in the order shall be suspended, and that all proceedings pending in any Court for the enforcement of those specified rights shall remain suspended for the period during which the Proclamation continues, or for a shorter period if the order so provides. Clause (2) adds that such an order may extend to the whole of India or to any part of its territory. The Court observed that, once a Proclamation of Emergency is issued under Article 352, Article 19 is automatically suspended for the duration of that Proclamation. Consequently, the legislative and executive powers become broader, and the constraints that Article 19 normally places on them are removed. During the emergency, if the legislature passes laws or the executive takes actions that conflict with the rights guaranteed by Article 19, those laws or actions cannot be challenged either while the emergency persists or after it ends. When the Proclamation ceases, the legislative enactments and executive actions that are inconsistent with Article 19 become inoperative to the extent of that inconsistency, because Article 19, which had been suspended, is revived automatically. Article 358, however, makes it clear that acts done or omissions made during the emergency cannot be questioned even after the emergency has terminated. In other words, the suspension of Article 19 is complete for the emergency period, and any legislative or executive measures that contravene Article 19 are not open to judicial review even after the emergency ends.

By contrast, Article 359 does not expressly suspend any fundamental right. Instead, it empowers the President to issue an order that declares the citizen’s right to move a Court for the enforcement of the rights specified in the order to be barred, and it stays all court proceedings relating to those rights for the period of the emergency or for a shorter period as specified. Thus, the effect of a Presidential order under Article 359(1) is to deny citizens the remedy of approaching a Court for enforcement of the identified rights. The rights themselves are not formally suspended; rather, the avenue for judicial enforcement of those rights is temporarily removed. The Court noted that this distinction means that while the rights remain alive in theory, the practical ability of a citizen to enforce them through the courts is restrained by the President’s order. This creates a situation where the substantive rights continue to exist, but the procedural mechanism to protect them is temporarily unavailable during the emergency.

In this case, the Court observed that there is a significant distinction between the provisions contained in Article 358 and those in Article 359(1). At this stage the Court noted that a question had been raised before it as to whether the fundamental rights listed in the Presidential Order issued under Article 359 remain, in theory, alive during the period specified in that Order. The Attorney‑General argued that the suspension of a citizen’s right to approach any court for enforcement of those rights, in legal terms, amounts to a suspension of the rights themselves for the duration of the Order. The Court expressly stated that it would not resolve that theoretical issue in the present appeals. Instead, it elected to proceed on the assumption, for the benefit of the appellants, that the rights referred to in the Order continue to exist in principle, and on that basis it would consider the remaining matters raised in the appeals.

The Court further explained that another difference between the two articles lies in the period for which the suspensions operate. Under Article 358, the suspension of the right guaranteed by Article 19 continues for as long as the proclamation of emergency remains in force. By contrast, the suspension created by a Presidential Order made under Article 359(1) may extend only for the duration of the emergency proclamation or for a shorter period, if the Order itself so specifies. The Court emphasized that the Presidential Order does not expand the legislative or executive powers; it merely halts the right to approach a court for relief on the ground that a fundamental right in Part III has been violated, provided that the right is among those enumerated in the Order. Consequently, when the Order ceases to operate, any infringement of the rights—whether by a legislative enactment or by executive action—may again be challenged in a court of law and may have to be adjudicated on its merits, because the rights were deemed to have been in force even while the Order was effective. Moreover, if after the expiration of the Presidential Order Parliament enacts legislation intended to protect executive actions taken during the period of the Order and to grant indemnity to the executive, the validity and effect of such legislation would require careful examination. Since the purpose of Article 359(1) is to suspend citizens’ ability to move courts, the Court held that any proceeding pending at the moment the Order is issued remains suspended for the time the Order is in effect and may be revived once the Order terminates. Fresh proceedings, however, cannot be instituted after the Order has been issued, because the Order removes the right to approach any court, and during its operation that right cannot be exercised by initiating new litigation.

In this case, the Court observed that any new proceeding launched in spite of the Presidential Order would be regarded as invalid and would have to be dismissed as incompetent. The effect of Article 359(1) together with the Order issued under that provision is therefore to create a sort of blanket prohibition or moratorium on the institution or continuation of legal actions that fall within its scope. This prohibition operates only when two essential conditions are satisfied. The first condition concerns the nature of the action; the action must be a claim for relief on the ground that the claimant’s fundamental rights, which are specifically listed in the Presidential Order, have been violated. The second condition relates to the duration of the ban; the prohibition remains in force for the entire period covered by the Proclamation, or for any shorter period that the Order itself may specify. The Court further distinguished the operation of Article 358 from that of Article 359(1). Under Article 358, the suspension of the rights guaranteed by Article 19 applies uniformly to the whole of the country, affecting every legislature and every State. By contrast, an Order issued under Article 359(1) may be framed to apply to the entire territory of India or it may be limited to a particular region or part of the country. These are the principal differences between the two constitutional provisions as identified by the Court.

The Court then turned to the arguments presented by counsel for the petitioner regarding the true reach of Article 359(1). Counsel contended that the phrase “the right to move for the enforcement of the specified rights” should be read to refer solely to the right to approach the Supreme Court, a right that is constitutionally guaranteed by Article 32(1). On that basis, counsel argued that the only right that can be taken away by Article 359(1) is the right to move the Supreme Court, and that a citizen would nevertheless retain the ability to seek relief from a High Court under Article 226 because the High Court’s jurisdiction does not fall within the mischief that Article 359(1) seeks to address. The Court noted that this line of reasoning attempts to isolate the words “the right to move for the enforcement of the specified rights” from the surrounding language that expressly mentions “any court”. In ordinary language, the expression “any court” cannot be limited to the Supreme Court alone; it inevitably embraces all courts of competent jurisdiction. If the framers of the Constitution had intended to restrict the operation of Article 359(1) to only the Supreme Court, they could have done so by using explicit wording rather than the broader term “any court”.

In examining the contention that the phrase “any court” in Article 359(1) should be read to refer only to the Supreme Court, the Court observed that such a narrow construction would have been easy to express by using the explicit words “the Supreme Court” rather than the broader expression “any court.” To overcome this difficulty, counsel for the petitioner invoked Article 32(3). Article 32(3) states that, without prejudice to the powers given to the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court, within its territorial limits, to exercise all or any of the powers that the Supreme Court may exercise under clause (2). The argument presented was that the Constitution envisages the possibility that certain other courts in the country might be vested with the powers exercisable by the Supreme Court under Article 32(2), and consequently the words “any court” were intended to encompass the Supreme Court together with those other courts on which such powers could be conferred. The Court rejected this argument as fallacious. It held that the scheme of Article 32 makes it clear that the right to move the Supreme Court, a right guaranteed as a fundamental right, cannot be claimed in relation to courts created under Article 32(3). Article 32(3) merely authorises the transfer of the Supreme Court’s powers to the courts specified in that clause; it does not confer the fundamental right guaranteed by Article 32(1) in respect of those courts. On a plain construction of the relevant provisions, it is therefore impossible to accept the proposition that courts established under Article 32(3) enjoy the same status as the Supreme Court, nor that the right to move such courts constitutes a fundamental right of a citizen. Moreover, it would be irrational to suggest that, although the Constitution does not grant citizens a guaranteed fundamental right to approach a High Court under Article 226, it would nonetheless grant such a guaranteed right concerning courts on which the Supreme Court’s powers under Article 32(2) might be conferred. Consequently, the suggestion that the phrase “any court” in Article 359(1) is justified because it includes the Supreme Court and some other courts fails. The Court concluded that the words must be given their ordinary grammatical meaning and interpreted to mean any court of competent jurisdiction, which includes both the Supreme Court and the High Courts before which citizens may enforce the specified rights.

In the same context, counsel for the respondent attempted to argue that the power of a High Court to issue writs or orders under Article 226(1) is a discretionary power, and therefore no citizen can claim a right to approach the High Court for that purpose. The submission further claimed that the proceedings contemplated by Article 226(1) fall outside the scope of Article 359(1). The Court examined this contention and found it to be unfounded. While it is true that the High Court exercises discretion in deciding whether to grant a writ or order sought by a petitioner, that discretion must be exercised judicially. Considering the scheme of Article 226(1), the Court held that a citizen does possess a right to move the High Court to invoke its jurisdiction under that provision. Article 226(1) endows High Courts with wide authority to issue the prescribed writs or any appropriate orders or directions. Given the nature of these powers and the purpose for which they were conferred, the High Courts must apply their discretion in a judicial manner, guided by well‑settled principles. Therefore, the argument that the discretionary nature of the High Court’s power negates a citizen’s right to approach the High Court under Article 226(1) was rejected.

The argument that proceedings instituted under Article 226(1) lay beyond the reach of Article 359(1) was assessed and found to be without foundation. While it is true that the High Court enjoys discretion to decide whether to grant a writ or an order sought by a petitioner under Article 226(1), that discretion is required to be exercised in a judicial manner. Accordingly, the High Court must apply legal principles, reasoned analysis and established standards rather than act arbitrarily. In light of the overall scheme of Article 226(1), it cannot be said that a citizen is denied a right to approach the High Court for the purpose of invoking its jurisdiction. Article 226(1) accords the High Courts wide authority to issue the writs specifically mentioned in the provision, as well as to make other appropriate orders or directions. Given the breadth of these powers and the object intended to be achieved by their conferment, there is little doubt that the High Courts must decide applications before them by exercising their discretion in accordance with well‑settled judicial principles. The High Courts are therefore prohibited from capriciously or unreasonably refusing to entertain such applications on the sole ground that the jurisdiction is discretionary. For this reason, the suggestion that citizen‑initiated proceedings under Article 226(1) are excluded from the operation of Article 359(1) was rejected. It was held that the expression ‘right to move any court’ in Article 359(1) must be interpreted to mean the right to move any court of competent jurisdiction, including the High Courts.

The next issue that required consideration was the precise nature of the proceedings that the Presidential Order issued under Article 359(1) could bar. Such barred proceedings are those initiated by citizens for the enforcement of those fundamental rights guaranteed by Part III that are specifically identified in the Order. When a citizen approaches any court on the ground that one or more of the fundamental rights listed in the Order have been contravened, that proceeding falls within the scope of the prohibition. In determining whether a particular proceeding is covered by the Presidential Order, the analysis must focus not on the formal label attached to the proceeding nor on the specific wording of the relief claimed, but on the substantive issue of whether adjudicating the relief would compel the court to examine a possible infringement of the specified fundamental rights. If the court cannot grant the relief sought without first deciding whether the citizen’s designated fundamental rights have been violated, the proceeding is deemed to fall within Article 359(1) and is consequently barred by the Presidential Order. Accordingly, the sweep of Article 359(1) together with the Presidential Order is sufficiently wide to encompass all claims made by citizens in any court of competent jurisdiction, whenever the resolution of such claims necessitates an inquiry into the alleged infringement of the specified fundamental rights.

In this case, the Court explained that a proceeding cannot be effectively adjudicated without examining whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights. The Court observed that the operation of Art. 359(1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force, or to any shorter period that may be specified in the Order. Accordingly, the Court found no difficulty in holding that proceedings taken by a citizen under Art. 32(1) or under Art. 226(1) fall within the ambit of Art. 359(1) and the Presidential Order. The Court added that the appellants’ contention that Art. 359(1) should be confined only to the right to move the Supreme Court would render the provision almost meaningless, because it would prevent a citizen from approaching the Supreme Court while still allowing the same relief to be sought in the High Courts and then, if necessary, on appeal to the Supreme Court. The discussion then turned to whether proceedings taken by a citizen under s. 491(1)(b) are affected by Art. 359(1) and the Presidential Order. Section 491(1)(b) provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty. It was strongly urged before the Court that habeas corpus proceedings under s. 491(1)(b) lie outside Art. 359(1), and therefore the Presidential Order cannot bar a citizen from seeking a writ of habeas corpus under that provision. The Court examined this argument with care. It noted that after section 491 was enacted in its present form in 1923, the right to obtain a direction in the nature of habeas corpus became a statutory right in India, and thereafter it was no longer a matter of common law. The Court referred to the reasoning of Rankin, C.J., in Girindra Nath Banerjee v. Birendra Nath Pal (I.L.R. 54 Cal. 727), where the learned Chief Justice traced the historical development and concluded that after 1923 the relief of a writ in the nature of habeas corpus could be claimed solely under the Criminal Procedure Code. The Court also cited a full bench of the Madras High Court in District Magistrate, Trivandrum v. K. C. Mammen Mappillai (I.L.R. 1939 Mad. 708), which held that it possessed no power to issue a writ of habeas corpus as known to English common law and that its powers were confined to those conferred by s. 491 of the Code of Criminal Procedure. Counsel for the petitioner contended that because the statutory right to obtain relief under s. 491(1)(b) is separate and distinct from the constitutional rights guaranteed by the relevant Articles, Art. 359(1) cannot be said to apply to proceedings under s. 491(1)(b). Counsel also relied on the provisions of Art. 372 in support of this contention.

The authority to issue habeas corpus directions was granted by section 491 of the Code of Criminal Procedure. When that issue was presented before the Privy Council in Matthen v. District Magistrate of Trivandrum (66 I.A. 222), the Law Lords noted that the analysis of Rankin C.J. in Girindra Nath Banerjee (I.L.R. 54 Cal. 727) was extremely clear and persuasive. The Privy Council therefore adopted Rankin C.J.’s reasoning and expressly declared that they were in full agreement with his conclusions. The same position was later reaffirmed by the Privy Council in King‑Emperor v. Sibnath Banerji (72 I.A. 241). Relying on those authorities, counsel for the petitioner argued that the statutory right to obtain relief under section 491(1)(b) is a separate and distinct entitlement from any constitutional right protected by the relevant articles of the Constitution. Consequently, the counsel submitted that Article 359(1) could not be said to govern proceedings brought under section 491(1)(b). To reinforce this submission, the counsel also invoked Article 372, which provides that existing laws continue in force, and drew attention to Articles 225 and 375 to demonstrate that the jurisdiction granted to High Courts by section 491 of the Criminal Procedure Code remains effective unless a competent legislature expressly withdraws it. The counsel further relied on the historical practice that whenever Parliament intended to suspend the operation of section 491, it enacted a specific provision for that purpose, citing section 10 of the Restriction and Detention Ordinance, 1944 (No. III of 1944) as an illustration. Section 10 of that ordinance expressly refers to section 491 of the Code and stipulates that no court shall have power to make any order under that section in respect of any order made under, or having effect under, the ordinance, or in respect of any person subject to such an order. The counsel argued that the Presidential Order was confined solely to proceedings undertaken for the enforcement of constitutional rights, and that if the Order was meant to prohibit actions under section 491(1)(b), it was necessary that a competent piece of legislation had expressly suspended that provision. The counsel also emphasized that the method of dealing with a proceeding under section 491(1)(b) differs fundamentally from the method courts employ when hearing matters under Articles 226 or 32. When exercising jurisdiction under Article 226(1) of the Constitution or Article 32(1), the courts first inquire whether the party filing the petition is actually aggrieved by the order that is challenged. In contrast, under section 491(1)(b) the court possesses the power to act on its own motion, which highlights a clear distinction in the character of the two categories of proceedings. That general observation, in broad terms, explains the manner in which the two streams of jurisdiction differ.

The counsel for the petitioner argued that proceedings instituted under section 491(1)(b) of the Code of Criminal Procedure are not covered by the Presidential Order and do not fall within the mischief that article 359(1) seeks to address. It was then noted that there is no doubt that the right to petition for a writ of habeas corpus, which once was regarded as a matter of common law, became a statutory right after the year 1923. The Court observed that, following the introduction of section 491 into the criminal procedure code, no citizen in India could claim a writ of habeas corpus on the common‑law grounds that were recognised before that time, except by relying on the specific provisions of section 491(1)(b) itself. The learned Attorney‑General, however, suggested 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 incorporated into the fundamental rights guaranteed by the Constitution. Accordingly, after the Constitution came into force, whenever a detainee asserts a claim for release from illegal or improper detention, his claim may, in certain circumstances, be sustained on the ground that such detention infringes his fundamental rights guaranteed by article 19, article 21 or article 23, as the situation requires. The Court observed that if this view is correct, it would be difficult to accept the argument that the portion of the statutory right recognised by section 491(1)(b) continues to retain a distinctive and independent character after the Constitution’s commencement to such an extent that it could be said not to form part of the fundamental rights guaranteed by the Constitution. It was further pointed out that two remedies are available to a person whose personal liberty has been violated: the person may approach the Court for a writ under article 226(1) or article 32(1) of the Constitution, or the person may commence a proceeding under section 491(1)(b) of the Code. Nevertheless, the Court found that, although either of these remedies may be elected by a citizen who has been detained improperly or illegally, the right that the citizen asserts remains the same whenever the remedy is based on the allegation that his fundamental rights have been breached. That right, the Court held, is guaranteed by the Constitution, and therefore, irrespective of whether the detainee chooses a constitutional writ or a proceeding under section 491(1)(b), the substantive right he seeks to enforce does not change. Finally, the Court noted that it is undeniably raised that, under section 491(1)(b), a stranger may apply for the release of a detainee who has been unlawfully or improperly detained, or the Court itself may act suo motu. This contention relies on the provision that the High Court may, whenever it thinks fit, issue an appropriate direction. The learned Attorney‑General argued that the phrase “whenever it thinks fit” implies that some application or petition must have been presented before the Court, and that after reviewing the application or petition the Court may determine that it is appropriate to act.

The respondent argued that the provision of section 491(1)(b) did not permit the court to act on its own initiative, that is, to take suo motu action. He further contended that a third person could file an application only if that person could demonstrate a proper authority to represent the detainee, or at least purport to act on the detainee’s behalf. The court indicated that it was not necessary to pronounce on this particular aspect of the dispute. For the purpose of its analysis, the court assumed that the judiciary could, in appropriate circumstances, exercise the power granted by section 491(1)(b) on its own motion. However, the court emphasized that such an assumption did not alter the core issue before it. The court observed that if Article 359(1) of the Constitution and the Presidential Order issued under that article governed the proceedings brought under section 491(1)(b), the mere ability of the court to act suo motu would not change the legal position. This is because a party who is barred by Article 359(1) and the Presidential Order from seeking release on the grounds set out in his petition cannot obtain relief, and the court, even if acting suo motu, cannot issue an order that conflicts with those constitutional and presidential restrictions. Likewise, if the proceedings under section 491(1)(b) fall within the sweep of Article 359(1) and the Presidential Order, any arguments relying on Article 372 or on Articles 225 and 375 would be without merit. The court further noted that the suspension of a citizen’s right to approach any court for enforcement of his fundamental rights inevitably entails a corresponding suspension of the court’s jurisdiction in respect of those rights.

To illustrate the nature of the dispute, the court considered a typical scenario. An application is filed on behalf of a detainee asserting that the detention is illegal or improper. The State, in its response, maintains that the detention is lawful because it was made under Rule 30(1)(b) and relies on the authority of section 3(2)(15)(i) of the relevant Act. Upon receiving the State’s reply, the detainee’s counsel challenges the validity of both section 3(2)(15)(i) and Rule 30(1)(b), contending that they violate the fundamental rights guaranteed under Articles 14, 21 and 22. Consequently, the only question that remains for determination is whether the statutory provisions and rules invoked by the State are constitutionally valid. If those provisions are found to be beyond the legislature’s power, the detention would be deemed illegal and improper; conversely, if the provisions are upheld as valid, the detention would be considered legal and proper. In addressing this issue, the court indicated that it must also consider the effect of section 45(1) of the Act, which stipulates that no order made in the exercise of any power conferred by the Act may be called into question in any court.

The provision of the Act that no order made in exercise of any power conferred by or under the Act may be called into question in any Court operates as a bar on judicial review. The detenu, however, would inevitably argue that despite this bar, the legality of the challenged legislation itself must still be examined. This argument draws out the essential nature of the controversy presented to the Court, namely that the detenu seeks a writ of habeas corpus to contest the basis of his detention. The Court therefore identified the principal question for resolution: whether the proceedings initiated under section 491(1)(b) possess a character so distinct that they fall outside the reach of Article 359(1) of the Constitution.

In considering this question, the Court examined the position of the detenu before the Constitution came into force. At that earlier stage, a detenu could challenge the detention by arguing that the statute authorising it was invalid because the legislature that enacted it lacked the requisite competence, or because the statute delegated excessive authority, or because mandatory procedural requirements of the Act had not been observed. Yet, prior to the Constitution’s adoption, a detenu could not contend that the law was invalid on the ground that it violated fundamental rights, since such rights were not yet constitutionally guaranteed. The right to attack a statute on the basis that it infringes fundamental rights emerged only after the Constitution was enacted, and consequently, when the detenu now raises a challenge to the statutory provision and the Rule, he is directly invoking his constitutional fundamental rights. If section 491 were regarded in isolation from the Constitution, the detenu’s plea would be inadmissible in proceedings under that section. The Court therefore held that the proceedings under section 491(1)(b) must be assessed not merely in the context of the pre‑Constitutional rights that existed before 1950, but also in light of the fundamental rights now guaranteed by the Constitution. Accordingly, the pre‑existing right to contest the legality of detention under section 491(1)(b) has been expanded by the constitutional guarantee of fundamental rights, and whenever a detenu invokes those fundamental rights in support of a petition filed under section 491(1)(b), he is essentially enforcing the constitutional rights, meaning that the proceedings necessarily assume the character of a proceeding for the enforcement of those rights.

In this case, the Court observed that the contention that Article 359(1) and the Presidential Order made under that provision were inapplicable to proceedings under section 491(1)(b) of the Code could not be upheld. The Court explained that the restriction contained in Article 359(1) and the accompanying Presidential Order would apply to proceedings under section 491(1)(b) to the same extent that it applied to proceedings initiated under Article 226(1) or Article 32(1). The Court stressed that, in deciding the issue, the focus must be on the substantive nature of the matter rather than on giving excessive weight to the formal label of the proceedings. It warned that if the form of the proceeding were treated as decisive, an illogical result would follow: a petition containing all necessary averments seeking the release of a detenu could be dismissed by a High Court merely because it was presented as an application under Article 226, while an identical petition presented as an application under section 491(1)(b) might be entertained and possibly succeed. The Court noted that this line of argument implied that when the Constitution‑makers drafted Article 359, they intended that, during an emergency, any Presidential Order issued under Article 359(1) concerning the fundamental rights guaranteed by Articles 21 and 22 would require a subsequent enactment to modify or repeal the relevant portion of section 491(1)(b) of the Code of Criminal Procedure. The Court rejected this implication, stating that it was wholly untenable. It held that whether proceedings under section 491(1)(b) fall within the scope of the Presidential Order must be determined by construing Article 359(1) and the Order, again looking at the substance rather than the form of the proceedings. The Court further asked whether, before granting relief to a detenu alleging illegal detention, the High Court must examine the validity of the operative provisions of the impugned Act on the ground that they infringe the specified fundamental rights. The Court answered affirmatively, declaring that the bar created by Article 359(1) and the Presidential Order inevitably applied, even if the proceedings were formally instituted under section 491(1)(b). Consequently, the Court concluded that once it is established that proceedings under section 491(1)(b) cannot advance substantially without assessing the validity of the challenged law against the specified fundamental rights, the restriction imposed by the Presidential Order operates against those proceedings just as it does against actions brought under Article 226(1) or Article 32(1). Thus, the substantive legal position was that the phrase “the right to move any court” in Article 359(1) extended to proceedings under section 491(1)(b).

The Court explained that the Presidential Order extends to every legal action that is either intended to be filed or actually filed where the specified fundamental rights are to be enforced. The Order therefore embraces all categories of jurisdiction of competent courts that would normally entertain and try such actions. The Court then referred to its recent judgment in Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura. In that case the Court rejected the detainee’s petition on the ground that it was barred by the Presidential Order and declined to consider the argument that the Ordinance, the Act and the Rules made thereunder were void because they violated Articles 14, 21 and 22. The Court observed that the petitioner’s challenge amounted to “arguing in the circle”. The Court held that when the Presidential Order prevents a citizen from moving a court for the enforcement of the specified fundamental rights, the citizen cannot simultaneously contend that the Act is void for infringing those same rights. The Order was issued precisely to forestall such a claim, and consequently, while the Order remains in force, a challenge to the validity of the Act cannot be entertained. The Court noted incidentally that a writ of habeas corpus filed by Mohan Chowdhury, which had been rejected on the ground of the Presidential Order, would be considered competent if it were presented before the appropriate High Court under section 491(1)(b) of the Code, as the appellants assert. That observation illustrated how giving excessive importance to the form of a petition could produce an absurd and irrational result. Accordingly, the Court concluded that the proceedings instituted before the respective High Courts on behalf of the appellants, which sought to challenge their detention on the basis that the impugned Act and its Rules are void for contravening Articles 14, 21 and 22, are incompetent. The incompetence arises because the fundamental rights alleged to be violated are specifically listed in the Presidential Order, which bars every citizen from moving any court for their enforcement. The Court then turned to the next question, namely the validity of the Presidential Order itself, which had been issued on 3 November 1962. The Order, identified as G.S.R. 1464, stated that, in exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President declared that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 on 26 October 1962 is in force, if such person

The Court observed that the Presidential Order stated that a person would be barred from moving any court for the enforcement of the rights conferred by article 21 and article 22 if that person had been deprived of those rights under the Defence of India Ordinance, 1962 (4 of 1962) or under any rule or order made thereunder. The Court noted that the Order had been subsequently amended on 11 November 1962 by the addition of article 14. The first point raised against the validity of the Order was that it was said to be inconsistent with the provisions of article 359(1) of the Constitution. It was argued that, under article 359(1), the President could issue only an order of general application, whereas the Order in question appeared to be 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 argument claimed that the Order did not apply to persons detained under the earlier Preventive Detention Act No. 4 of 1950, and that by restricting its operation to those detained under the Ordinance, the President had exceeded the powers granted by article 359(1). The Court rejected this contention. It held that the power conferred on the President was sufficiently wide to permit an order that could apply to the whole country and to all citizens with respect to any of the rights guaranteed by Part III of the Constitution. Such a broad power could also encompass the issuance of a limited order. The Court explained that the purpose of the Order was to provide that every person, wherever residing, who had been detained under the Ordinance or the Act would be precluded from moving any court for the enforcement of the rights named in the Order. The Court found no difficulty in reconciling this limited scope with the authority given to the President by article 359(1) and concluded that the argument asserting inconsistency could not be sustained.

The Court then turned to the second argument, which claimed that the Order was invalid because it attempted to give effect to an Ordinance that was itself void. The Court recalled that Ordinance No. 4 of 1962 had been promulgated on 26 October 1962, whereas the Presidential Order had been issued under article 359(1) on 3 November 1962. The argument asserted that, during the interval between 26 October and 3 November, the Ordinance could have been challenged on the ground that it violated articles 14, 21 and 22, and therefore might be regarded as a “still‑born” piece of legislation. Consequently, the Court said, detentions effected under such a void law could not be protected by the Presidential Order, which deprived the detenues of the right to approach any court to challenge the validity of their detention orders. The Court found this line of reasoning to be wholly misconceived. For the purpose of the appeals, the Court stated that 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 prescribed period. Accordingly, even if the Ordinance and the subsequent Act were held to be invalid because they contravened the fundamental rights, the effect of the Presidential Order was to prevent any testing of that invalidity during the period specified. The Court therefore rejected the proposition that the invalidity of the Ordinance or the Act would bar the Presidential Order from precluding a citizen from questioning its validity.

The Court explained that the fundamental rights guaranteed by Articles 14, 21 and 22 were not themselves suspended by the Presidential Order. What was suspended, the Court said, was only the enforcement of those rights for the period that the Order specified. Consequently, the observation that the Ordinance was invalid for the interval between 26 October and 3 November remained correct even after the Order had been issued on 3 November. The Court noted that if the detainees were entitled to argue that the Ordinance and the subsequent Act violated 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 that the validity of those statutes could not be examined during the period prescribed by the Order. For this reason, the Court rejected the contention that the invalidity of the Ordinance or the Act meant that the Presidential Order could not stop a citizen from questioning the statutes’ validity. The Court further observed that the same line of argument was being presented in a different guise. It was argued that it was enough simply to examine the Ordinance and the Act to determine that Articles 14, 21 and 22, including clauses (4), (5) and (7), had been contravened. The argument suggested that if the defects in the Ordinance and the Act were obvious, the President could not lawfully issue an Order that barred detainees from challenging the statutory provisions. The Court likened this reasoning to the “argument in the circle” described in the earlier Mohan Choudhury decision. Accordingly, the Court concluded that the challenge to the validity of the Presidential Order was without merit.

The Court then turned to the question of what remedies remained available to the citizens to contest the legality or propriety of their detention, whether under Section 491(1)(b) of the Code of Criminal Procedure or under Article 226(1) of the Constitution. It reiterated that the right to approach any court, which was suspended by Article 359(1) and the accompanying Presidential Order, pertained only to the enforcement of the specific rights listed in Part III of the Constitution that were mentioned in the Order. If a detainee, while challenging the validity of his detention order, relied on a right that was not among those specified in the Order, his right to approach a court was not suspended, because such a right lay outside the scope of Article 359(1) and therefore outside the reach of the Presidential Order. To illustrate, the Court considered a situation where a detainee had been held in violation of the mandatory provisions of the Act. In that circumstance, the detainee could argue that his detention was unlawful because the Act’s mandatory requirements had not been fulfilled. The Court held that such a plea fell outside Article 359(1), and consequently the detainee’s right to seek release on that ground could not be barred by the Presidential Order. The Court further noted that a detainee might also move the court for a writ of habeas corpus on the ground that his detention had been...

The Court observed that when a power is exercised in a malicious or improper manner, such conduct lies entirely outside the authority granted by the statute and may always be successfully challenged. While a bare allegation that a detention is malicious is insufficient, the detainee must nevertheless produce evidence to establish the improper motive. However, the Court held that even when the detainee alleges malicious intent, the detainee cannot be barred from proving that allegation on the basis of the restriction created by Article 359(1) and the Presidential Order. Such a claim, the Court said, falls outside the scope of Article 359(1). Section 491(1) governs the High Court’s power to issue directions of the habeas‑corpus type and enumerates six categories of cases in which such directions may be granted. The Court explained that only in the specific category identified as clause (b) of Section 491(1), where the legality of detention is disputed on grounds that are covered by Article 359(1) and the Presidential Order, does the statutory bar operate. In every other category falling within Section 491(1), the bar does not apply and any proceedings on behalf of the detainee must proceed according to the law. The Court added that the categories listed were presented merely as illustrations and should not be construed as an exhaustive list of all pleas that lie beyond the reach of the Presidential Order. The Court further noted another basis on which the validity of a detention may be challenged. If a detainee contends that the operative provisions of the law authorising his detention suffer from excessive delegation and are therefore invalid, such a plea cannot at the threshold be said to be barred by the Presidential Order, because it does not relate to the fundamental rights enumerated in that Order. The plea is independent of those rights and must be examined on its own merit. Counsel for the petitioner submitted that Section 3(2)(15)(i) and Section 40 of the Act are invalid because they grant the rule‑making authority powers that amount to excessive delegation. The Court therefore considered this argument. The Act, which replaced the earlier Ordinance, was enacted because Parliament deemed it necessary to provide special measures for public safety, the defence of India, civil defence, and for the trial of certain offences and related matters. Section 3(2)(15)(i), the provision whose validity was being challenged, purports to empower the Central Government to make Rules. Section 3(1) states that the Central Government may, by notification in the Official Gazette, make such rules as appear necessary or expedient for securing the defence of India and civil defence, public safety, the maintenance of public order, or the efficient conduct of military operations.

Section 3(2) of the Act states that, without limiting the general powers already granted by subsection 1, the rules may be made to cover any of the matters listed in clauses 1 through 57, and may also empower any authority to issue orders on those matters. Among the many enumerated clauses, clause 15(i) is of particular relevance. That clause provides that, notwithstanding any other law currently in force, the rules may make provisions for the apprehension and detention in custody of any individual whom the authority empowered by those rules to apprehend or detain—an authority that must not be of a rank lower than that of a District Magistrate—suspects, on reasonable grounds, of being of hostile origin or of having acted, being about to act, or likely to act in a manner that is prejudicial to the defence of India, civil defence, the security of the State, public safety or public interest, the maintenance of public order, India’s relations with foreign States, the maintenance of peaceful conditions in any part of India, or the efficient conduct of military operations. The clause further allows detention when the authority is satisfied that such apprehension and detention are necessary to prevent the person from acting in any of the aforementioned prejudicial ways.

The respondents argued that by giving the Central Government the power to make these rules, the legislature had effectively surrendered its essential legislative function to the executive. The Court rejected this contention as wholly untenable. It observed that, since the decision in the 1951 Special References case, In re The Delhi Laws Act, 1912 etc., the Supreme Court has repeatedly examined the permissible limits of legislative delegation. The Court has consistently held that the legislature may not delegate its core legislative powers. However, when the statute clearly outlines the substantive legislative policy and leaves only the detailed implementation to the delegate through rule‑making, such delegation is permissible. The Court cited the decision in Harishanker Bagla v. State of Madhya Pradesh, where the validity of the Essential Supplies (Temporary Powers) Act, 1946, was upheld because the preamble and the operative provisions of the Act adequately expressed the legislative policy, thereby limiting the scope of the delegated authority. Applying this principle, the Court found that both the preamble to the present Act and the specific language of Section 3(2), including clause 15(i), provide a detailed legislative framework that guides the rule‑making authority. Consequently, the challenge that clause 15(i) suffers from excessive delegation was rejected.

The Court observed that the Act was drafted in such a way that the finer points of the legislative policy could be worked out only by delegating authority to a subordinate body, and that delegation was to be exercised within the overall framework set by the legislation. The same principle had been articulated earlier in Bhatnagars and Co., Ltd. v. The Union of India, reported in the 1957 Supreme Court Reporter at page 701. Applying this reasoning to the present matter, the Court examined section 3(1) together with the detailed provisions contained in the various clauses of section 3(2). The Court found that the challenge to the validity of that section on the ground of excessive delegation was plainly untenable. Firstly, the legislative policy was broadly outlined in the preamble to the Act, and secondly, the specific provisions of the contested section itself supplied such detailed and precise guidance to the authority responsible for making rules that it would be unreasonable to argue that the Act had transferred an essentially legislative function to that rule‑making authority. Consequently, the Court rejected the contention that subsection 3(2)(15)(i) suffered from the vice of excessive delegation. The reasoning applied to section 3 was held to be equally applicable to section 40 of the Act. Since the impugned sections were deemed valid, the Court concluded that Rule 30(1)(b), which the appellants had challenged, must also be valid because it conformed to the operative provisions of the Act and the Central Government had acted within the limits of its delegated authority when formulating the rule. This conclusion was limited to the appellants’ challenge based on the allegation of excessive delegation.

The Court noted that had it found the impugned provision to be invalid for excessive delegation, it would then have been necessary to consider the effect of that finding on the substantive dispute between the parties. In such a hypothetical scenario, the Court would have had to determine whether a detainee, in contesting the legality of the detention order, was thereby invoking his fundamental right under Article 21 of the Constitution. Because Article 21 was listed among the rights specified in the Presidential Order, any attempt by a detainee to enforce that right at any stage of the proceedings would have been prohibited. The Court further explained that if the detainees had demonstrated that the impugned provisions were invalid due to excessive delegation, their next step would have been to argue that their detention under an invalid law was void under Article 21, which requires the law relied upon to be valid. This line of argument would raise the question of whether such a plea fell within the scope of Article 359(1) and the related Presidential Order. The Court, however, declined to express an opinion on that hypothetical question, as it had already resolved that the Act did not suffer from excessive delegation and therefore the further enquiry was unnecessary.

In this case the Court indicated that it would not express any view on the question of whether, had the challenge to the Act been upheld, the detained person would have been barred from relying on the alleged invalidity of the law to argue that his detention was unlawful. The Court explained that it had already determined that the Act did not suffer from the defect of excessive delegation, and therefore it was unnecessary to pursue the hypothetical enquiry about the consequences of a successful challenge. The Court then turned to other submissions that had been raised during the hearing of the appeals. Counsel for the petitioner argued that the portion of the Act containing the contested sections was a colourable piece of legislation. The counsel contended that, because the Preventive Detention Act No 4 of 1950 was already on the statute book, it was hardly necessary for the Legislature to enact the impugned Act, and that the sole purpose of enacting the new Act was to deprive citizens of the fundamental rights guaranteed by Articles 21 and 22; consequently, the new law should be regarded as a colourable enactment. The Court noted that the legislative competence of Parliament to pass the Act was not in dispute, since Entry 9 of List I in the Seventh Schedule authorises Parliament to make laws concerning preventive detention for reasons related to defence, foreign affairs, the security of India, or persons subject to such detention. The Court observed that, if Parliament believed that the serious threat to India’s security posed by the Chinese aggression required a fresh statute despite the existence of an earlier Act, it would be difficult to conclude that Parliament acted in bad faith or that the law amounted to a colourable exercise of legislative power. The Court further emphasized that a challenge based merely on the claim that a duly enacted law is colourable cannot succeed on such insubstantial grounds, and that whether the enactment was a wise policy decision is irrelevant to the question of colourability. The Court then referred to another facet of the same argument that had been presented. Before addressing that point, the Court briefly explained the constitutional provisions involved: Article 14 guarantees equality before the law; Article 21 provides, inter alia, that no person shall be deprived of personal liberty except according to procedure established by law; and 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 that an Advisory Board be constituted and that detained persons be referred to that Board for its opinion.

Article 22(5) required the authority that detained a person to inform that person of the reasons for the detention order, thereby giving the detainee the earliest possible chance to make a representation against the order. Article 22(6) allowed the detaining authority, when giving such notice, to withhold any facts that it considered to be against the public interest if disclosed. Article 22(7) laid down specific conditions that any law enacted by Parliament to empower the detention of citizens must satisfy. Consequently, the Constitution authorised Parliament to enact legislation providing for the detention of citizens, but that power could be exercised only if the mandatory conditions stipulated in Articles 22(4), 22(5) and 22(7) were observed. It was accepted as common ground that the Preventive Detention Act of 1950 fulfilled these constitutional requirements because it contained sections 7 to 13 that addressed the safeguards prescribed in the Constitution. In contrast, the Act that was being challenged did not incorporate those constitutional safeguards. The contention advanced was that even if Parliament believed that, during the emergency, persons suspected of engaging in prejudicial activities ought to be detained without the benefit of the safeguards guaranteed by Articles 22(4), 22(5) and 22(7), Parliament was under no compulsion to enact the new legislation; it could have left the executive to act under the existing Preventive Detention Act of 1950. Because Parliament chose to pass the challenged Act and apparently disregarded the constitutional provisions of Articles 14 and 22, the argument was that the legislative power exercised by Parliament should be regarded as a colourable exercise of that power. This line of argument appeared to assume that, had Parliament expected the executive to detain citizens under the 1950 Act without granting them the constitutional safeguards of Article 22, the situation could have been covered by a Presidential Order issued under Article 359(1) concerning such detentions. The Court then posed the question of whether that assumption was well founded. It considered a hypothetical scenario in which a Presidential Order suspended citizens’ right to approach any court for enforcement of their fundamental rights under Articles 14, 21 and 22 and applied that Order to persons detained under the Preventive Detention Act of 1950. The Court asked whether such an Order could effectively bar detainees from challenging the legality and validity of their detention. Moreover, the Court examined whether a detainee, detained under the 1950 Act, who challenged the detention on the ground that the statutory provisions of that Act had not been complied with, would have his challenge fall within the scope of Article 359(1) and the Presidential Order issued thereunder. In other words, the Court queried whether, by raising the challenge, the detainee was merely seeking to enforce his fundamental rights, thereby bringing the challenge within the prohibition of the Presidential Order.

The Court examined the question of whether a detainee who contests the legality of his detention on the ground that the mandatory provisions of the Preventive Detention Act of 1950 have not been observed is acting outside the reach of Article 359(1) and the Presidential Order made under that article. The Court observed that if the detainee’s challenge is characterised purely as a claim that the statutory requirements of the Act were not complied with, then the challenge would ordinarily lie outside Article 359(1) and the Presidential Order. Conversely, the Court noted that if the substance of the challenge is to enforce the fundamental rights enumerated in the Presidential Order, even though the detainee frames his argument by referring to the statutory provisions, the challenge could fall within the prohibition imposed by the Presidential Order. The Court reiterated its earlier position that a challenge based on non‑compliance with the statutory conditions of the Act generally falls outside Article 359(1) and the Order. However, the hypothetical situation under consideration is complicated by the fact that the mandatory provisions at issue essentially embody the fundamental rights guaranteed by Article 22, and it is therefore open to argument that the detainee’s challenge substantially seeks to enforce those fundamental rights. The Court stated that, for the present alternative argument, it was unnecessary to determine definitively whether the challenge would attract the provisions of Article 359(1) and the Order. The discussion was undertaken merely to illustrate that Parliament may have presumed that the executive could not lawfully detain citizens who were reasonably suspected of prejudicial activities without recourse to the Preventive Detention Act of 1950, and that such a presumption could be the origin of the impugned Act. If that presumption is correct, the Court held, it would be inappropriate to allege that Parliament acted in bad faith when it enacted the Act. The Court further observed that if the Act violates the citizens’ fundamental rights under Articles 14 and 22, the Act would be void and any detentions effected under its provisions would be inoperative. Nevertheless, the Court emphasized that in such circumstances Article 359(1) and the Presidential Order issued thereunder intervene to bar the citizen from enforcing his fundamental rights before any court. Both the article and the Order indicate that there may be situations where executive action infringes the specified fundamental rights of citizens, rendering that executive action invalid. Accordingly, the article and the Order impose a prohibition on examining the merits of such challenges during the period specified by the Order. On this basis, the Court concluded that the alternative argument suggesting that the impugned provisions of the Act amount to a colourable piece of legislation fails.

Mr. Parulekar contended that a detainee could still invoke the Ordinance, the Act and the Rules issued under the Presidential Order so long as he did not seek any consequential relief. He explained that the relief sought in his petition filed under section 491(1)(b) was split into two distinct prayers. The first prayer asked the Court merely to declare that the challenged Act and the Presidential Order were invalid. The second prayer sought a declaration that his detention was illegal and consequently asked for his release. According to Mr. Parulekar, the first prayer did not fall within the scope of the Presidential Order because it did not involve the enforcement of any personal right; it was only a request for a judicial declaration of invalidity. He further argued that even if the Order barred the detainee from challenging the legality of his detention, it should not bar him from challenging the validity of the law itself in order to obtain a declaration to that effect. The Court rejected this line of reasoning. Section 359(1) was intended to give the President authority to issue an Order that suspends a detainee’s right to approach the Court to contest the validity of his detention on the ground that his fundamental rights, as specified in the Order, have been infringed. Consequently, it would be unreasonable to allow a detainee to pursue a purely academic declaration of invalidity when the same provision prevents him from obtaining relief of release. A proceeding under section 491(1)(b), like a petition under Article 226(1) or Article 32(1), is designed to obtain concrete relief, namely an order directing the release of the detainee. If the Presidential Order prohibits the detainee from seeking a release order because he cannot challenge the detention’s validity during the Order’s operation, the Court could not permit him to obtain a mere declaration of invalidity under section 491, the Criminal Procedure Code, or Articles 226(1) or 32(1). Moreover, the High Court was not entitled to examine the validity of the impugned Act in isolation from the detainee’s prayer. The petition filed under section 491(1)(b) constituted a single proceeding; therefore, if the sole relief sought—release—was barred by the Presidential Order, it would be unreasonable to allow a different, purely declaratory relief. Such a declaration lies outside the scope of proceedings under section 491(1)(b) and Articles 226(1) and 32(1).

During the hearing of these appeals, counsel for the State, Mr. Setalvad, vigorously argued that the emergency created by the Chinese act of aggression might persist for an extended period, and that this prospect could have implications for the enforcement of fundamental rights during the life of the Presidential Order. The Court noted this submission but indicated that the duration of the emergency and the specific restrictions on citizens’ fundamental rights were matters that ultimately fell within the executive’s domain, given the executive’s responsibility to assess the situation and respond to the exigencies of a grave crisis.

It was observed that the operation of the Presidential Order would prevent citizens from enforcing the fundamental rights that the Order itself identified during the time the Order remained in force. The Court noted, however, that this observation did not affect the matters presently before it. The Court explained that the questions of how long a proclamation of emergency should remain in effect and which restrictions on fundamental rights should be imposed while the emergency persisted were questions that necessarily belonged to the executive branch. The executive, the Court said, possessed the practical knowledge of what the situation required and understood the compulsory pressures that arise during a grave national crisis such as the one the country was experiencing. To illustrate the principle that extraordinary powers are confined to extraordinary circumstances, the Court quoted Lord Wright from the case of Liversidge ([1942] A.C. 206.), stating that “the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extra ordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency.” The Court then turned to the second part of the argument presented by counsel for the petitioner, which suggested that while the Presidential Order was in operation the executive might misuse its authority and citizens would have no remedy. The Court characterised this contention as essentially political and held that its relevance to the constitutional issue under consideration was, at best, indirect. Nonetheless, the Court recognised that, even in an emergency, a democratic State relies on an enlightened, vigilant and vocal public opinion as the effective safeguard against any abuse of executive power, whether the nation is at peace or facing an emergency.

The Court also noted that the appellants had relied upon observations made by Lord Atkin in Eshuqbavi Eleko v. Officer Administering the Government of Nigeria (A.I.R. 1931 P.C. 248.). Lord Atkin had declared that, “in accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive.” The Court held that such noble sentiments, together with Lord Atkin’s well‑known minority speech in Liversidge, naturally inspired those who had taken an oath to administer law according to the Constitution and to protect the fundamental rights guaranteed by it. The Court affirmed its awareness of the solemn duty imposed by Article 32(1), which designates the Court as the custodian and guardian of citizens’ fundamental rights. At the same time, the Court stressed that the confidence placed in individual liberty, freedom and the majesty of law must ultimately be governed by the Constitution itself, which it described as the “law of laws,” the supreme and paramount law of the country, and the source that enshrines the fundamental rights of the citizens in the relevant articles of Part III.

In this matter, the Court acknowledged its role as the custodian of fundamental rights and affirmed that it must prevent any violation of those rights under the Constitution. The Constitution, however, contains emergency provisions in Chapter XVIII that are intended to enable the nation to confront serious crises such as the one presently confronting it. Consequently, when considering a citizen’s ability to contest the legality of his detention, the Court found it necessary to apply the clear language of Article 359(1) together with the Presidential Order issued pursuant to that article. The Court previously explained that the only sensible interpretation of Article 359(1) is that a citizen’s entitlement to commence any legal proceeding for the enforcement of the fundamental rights specified in the Presidential Order is suspended for the duration stipulated in that order. The Court further observed that the right mentioned in Article 359(1) encompasses any relevant right, whether it arises from statute, from the Constitution itself, or from Constitutionally guaranteed provisions, and that the phrase “any court” includes every court of competent jurisdiction, expressly covering the Supreme Court as well as the High Courts.

Given this interpretation, the Court held that it would be wholly inappropriate to entertain any argument attempting to bypass the provision by claiming that the detainee’s right to challenge the legality of his detention under section 491(1)(b) of the Code of Criminal Procedure lies outside the scope of Article 359(1). The Court noted that such an argument focused solely on the formal shape of the petition while disregarding the substantive issues involved. The Court regarded this line of reasoning, which relied on an artificial and unrealistic subtlety, as ill‑founded, unreasonable, and unsound. Accordingly, the Court affirmed the determinations of the Punjab High Court and the Bombay High Court that the detainees before those courts were not entitled to argue that the impugned Act and the statutory rule under which they were detained were void on the ground that they violated Articles 14, 21 and 22(4), (5) and (7) of the Constitution.

Before disposing of the appeals, the Court addressed an additional point raised at the start of the hearing. When counsel for the appellants began to argue regarding the validity of the challenged provisions of the Act and the Rules, the learned Attorney‑General put forward a preliminary contention. The Attorney‑General argued that, as a matter of logic, the appellants first needed to demonstrate to the Court that they were permitted to approach the High Courts on the grounds they had raised, before the Court could examine the validity of those grounds. He suggested that the initial issue for consideration should be whether the detainees could challenge the validity of the impugned Act on the basis that they were being detained illegally. The Attorney‑General further explained that, if the detainees succeeded in showing that the applications filed by them under section 491(1)(b) were competent and did not fall within the ambit of Article 359(1) and the Presidential Order, then the matter would proceed to the stage of evaluating the merits of the challenge to the statutory provisions.

The Court observed that the appellants first needed to establish that their applications under section 491(1)(b) of the Code of Criminal Procedure were competent before the Court could consider their substantive complaint that the statutory provisions were invalid. It further noted that if the appellants failed to succeed on this preliminary point, the second point concerning the validity of the provisions could not be entertained. Because many appeals were pending before the Court and because they raised significant constitutional questions, the Court decided it would be appropriate to permit counsel for the appellants, Mr Setalvad, to present his arguments in the order he deemed most effective. Accordingly, Mr Setalvad first addressed the Court on the validity of the Act and subsequently examined the competence of the applications filed under section 491(1)(b). The Court observed that the other counsel representing the appellants followed the same approach. When the Attorney‑General responded, he was also compelled to discuss both issues. The Court noted that, regarding the validity of the challenged provisions of the Act and the Rules, the Attorney‑General was not prepared to dispute the appellants’ claim that the Act infringed Articles 14, 21 and 22(4), (5) and (7) of the Constitution. Nevertheless, he vigorously maintained his original position that the Court should not reach the stage of evaluating the validity of the Act if it were to uphold the preliminary objection that the detainees’ applications were incompetent. In the Court’s view, the Attorney‑General was correct in asserting that no opinion on the validity of the impugned Act could be rendered if the Court concluded that the bar created by the Presidential Order applied to the detainees in the present case. The Court affirmed that this was the approach taken in the earlier decision in Mohan Choudhury’s case and that it represented the only logical and proper course. Consequently, the Court held that both the Punjab High Court and the Bombay High Court were justified in determining that the detainees’ applications for release under section 491(1)(b) of the Criminal Procedure Code were incompetent insofar as they sought to challenge the legality of their detention on the ground that the Act and the Rules under which they were detained violated the fundamental rights guaranteed by Articles 14, 21 and 22(4), (5) and (7). Since these appeals had been placed before the Special Bench to resolve the common questions of law they raised, the Court declined to examine the additional contentions raised by each appellant individually. The Court therefore directed that all the appeals forming the present group be referred to a Constitution Bench for further consideration and that each appeal be dealt with in accordance with the law. The judgment then notes that the author had read the judgment of the senior colleague, Justice Gajendragadkar, and expressed regret at the inability to

The Court noted that it did not fully share the judgment of the other judge. It agreed with the other judge’s conclusion that Article 359 of the Constitution applied to a right to approach a court under Article 32(2) and Article 226, but it disagreed with the other judge’s view regarding the exercise of power by the High Court under section 491 of the Code of Criminal Procedure. The Court observed that the appeals presented questions of great importance because they concerned seemingly conflicting yet actually harmonious concepts of individual liberty and State security, since one cannot exist without the other. The Court explained that it felt justified in treating the subject separately, even on points where there was general agreement, because it believed that on important questions it should express its own thoughts. Broadly, the Court identified two questions for its consideration. First, whether section 3(2)(15)(i) of the Defence of India Act, 1962 (the Act) and rule 30(1)(b) of the Rules made under the Act were constitutionally void. Second, whether a Presidential order made under Article 359(1) of the Constitution barred any court from entertaining a challenge to the validity of a detention order made under the Act. The Court stated that it would address these two questions in the order it was about to give. Before dealing with the first question, the Court found it convenient to quote the impugned provisions of the Act. It reproduced section 3, which provided that the Central Government could, by notification in the Official Gazette, make such rules as it deemed necessary or expedient for securing the defence of India and civil defence, public safety, maintenance of public order, efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. The Court then reproduced subsection (2) of section 3, which clarified that, without prejudice to the generality of the powers in subsection (1), the rules might provide for, and empower any authority to make orders for, all or any of a list of matters. Among those matters, clause (15) allowed, notwithstanding any other law, the apprehension and detention in custody of any person whom the empowered authority—who could not be of lower rank than a District Magistrate—suspected on reasonable grounds 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, civil defence, State security, public safety or interest, maintenance of public order, India’s foreign relations, peaceful conditions in any part of India, or the efficient conduct of military operations, and when the authority was satisfied that the person’s apprehension and detention were necessary to prevent such prejudicial conduct.

The Court explained that Rule 30 authorises the Central Government or a State Government, when it is satisfied that a particular individual must be prevented from acting in any manner that is prejudicial to the defence of India, civil defence, public safety, the maintenance of public order, India’s relations with foreign powers, the preservation of peaceful conditions in any part of the country, the efficient conduct of military operations, or the maintenance of supplies and services essential to community life, to issue an order directing that person’s detention. The provision empowers the Government to act where it believes such detention is necessary for those purposes. Rule 30A subsequently mandates that every detention order be subject to review in accordance with the provisions that follow. Specifically, any detention order issued by the Central Government, a State Government or the Administrator must be reviewed by the same authority that made the order. When the order is made by an officer empowered by the State Government or the Administrator—who must not be of a rank lower than that of a District Magistrate—the review mechanism differs. For orders made by a State‑empowered officer, the review must be conducted by a panel consisting of any two officers chosen from among the Chief Secretary, a member of the Board of Revenue, the Financial Commissioner, and a Commissioner of a Division, as may be prescribed by notification in the Official Gazette. In the case of an order made by an officer empowered by the Administrator, the review is to be carried out by the Administrator himself.

The Court further noted that under the provisions of Rule 30, the Central Government, a State Government, or any officer to whom the power of detention has been delegated may order the detention of any person if, after consideration, the detaining authority is satisfied that detention is necessary for any of the reasons listed in Rule 30. The provisions do not require that the grounds for detention be communicated to the detainee, nor do they obligate the authority to provide the detainee an opportunity to make representations or to prove innocence. Moreover, the duration of detention is not limited and may be indefinite. The authority that initially makes the detention order—whether the Central Government, a State Government, or the Administrator of a Union Territory—is empowered to review that order. Likewise, a detention order made by a State‑government‑empowered officer may be reviewed by one of the officers specified in Rule 30A(4). The petitioners contended that these provisions violate Articles 22(4) and 22(5) of the Constitution and should therefore be declared void. The Court referred to its earlier decision in Deepchand v. State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 8, 40, which had set out the legal effect of a law that is found to be in infringement of fundamental rights.

The Court explained that a statute which contravenes fundamental rights is void from its inception. It quoted the earlier decision, stating that the discussion could be reduced to three key propositions. First, whether the Constitution expressly empowers the legislature to enact laws on particular subjects or merely bars it from infringing fundamental rights, both situations demonstrate a limitation on legislative authority. Second, the Constitution explicitly subjects the legislature’s power to legislate on matters listed in the Seventh Schedule to the other constitutional provisions, thereby restricting that power by the limitations found in Part III. Third, the logical consequence of these premises is that any law which is enacted in derogation of, or beyond, the legislature’s permitted power must be declared void ab initio, either in whole or to the extent of the conflict. This reasoning was later affirmed by the Court in Mahandra Lal v. State of U.P.

The judgment then observed that it is clear that, if the Act and the rules made under it violated the provisions of Article 22 (4) and (5) of the Constitution, those provisions would be void from the beginning, rendering the law a dead letter and any detention effected under it illegal. The Court noted that Articles 21 and 22 guarantee fundamental rights concerning personal liberty, with clauses 4 to 6 of Article 22 specifically addressing preventive detention. Referring to A. K. Gopalan v. State of Madras, the Court held that the term “law” in Article 21 refers to State‑made or enacted law, and that Article 22 merely sets out the minimum procedural safeguards that such a statute must not violate in cases of preventive detention. The Court listed those minimum safeguards: Parliament may prescribe the maximum period a person may be detained; a person cannot be detained for more than three months unless an Advisory Board, constituted for that purpose, reports before the three‑month period that there is sufficient cause for detention; and the authority ordering detention must inform the person of the grounds of detention and give the earliest opportunity to make representations against the order. The Court further explained that clause 7 authorises Parliament to define the circumstances and the categories of cases in which a person may be detained for more than three months without obtaining the Advisory Board’s opinion, while clause 6 permits an authority to withhold facts from the detainee if disclosure would be against the public interest. Thus, while clauses 4 to 6 provide the minimum safeguards for a detainee, clause 7 effectively removes those safeguards by allowing Parliament to legislate for preventive detention in a manner that largely bypasses them. Consequently, the only remaining safeguard is the one mentioned next.

In this case the Court observed that Parliament is authorised to create a law that derogates from the safeguards in Article 22 only by specifying the circumstances and the particular classes of cases in which a person may be detained. The Court noted that Parliament had not enacted any such law. The Court then examined the Act and the rules made under it and found that they failed to meet the requirements set out in the constitutional clause. Specifically, the Act and its rules did not prescribe a maximum period for detention, did not require that the grounds of detention be communicated to the detainee, did not guarantee an opportunity to make representations against the detention, and did not provide for an Advisory Board composed of persons possessing the necessary qualifications. Moreover, the power of review granted to the detaining authority could not be regarded as satisfying the requirement of an Advisory Board under clause 4(a) of Article 22. Accordingly, the Court concluded that Parliament had enacted a law that directly infringed the provisions of Article 22, rendering the law void under that Article. The Court then turned to an argument raised by counsel for the State. Counsel contended that a proper construction of Article 359(1) of the Constitution allows the President, by issuing an order, to enact a law that infringes Article 22. Under Article 359, the President may, by order, declare that the right to approach any court for enforcement of the fundamental rights mentioned in the order is suspended for the duration of a proclamation of emergency or for a shorter period specified in the order. Counsel argued that when the remedy is suspended with respect to an infringement of Article 22, the underlying right is also suspended, asserting a reciprocal relationship between right and remedy: without a right there can be no remedy, and without a remedy there can be no right. Counsel cited a passage from the eleventh edition of “Salmond on Jurisprudence” (page 531) under the heading “Ubi Jus Ibi Remedium”, which states: “Whenever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize. In early systems this is far from being the case. We there find remedies and forms of action determining rights than rights determining remedies. The maxim of primitive law is rather, Ubi remedium ibi jus.” The Court understood this passage to mean that a right belongs to substantive law while a remedy belongs to procedural law, and that when a statute creates a right, a remedy may be implied even if not expressly provided. However, the Court noted that the converse does not necessarily apply.

The Court observed that doctrines which applied in primitive law could not be employed in the modern legal order. In other words, the Court held that the suspension of a procedural remedy did not nullify the substantive right itself. The Court then compared Articles 358 and 359 of the Constitution and concluded that the framers of the Constitution could not have intended otherwise, because Article 358 explicitly suspends the right, whereas Article 359 expressly suspends the remedy. The Court explained that if the argument advanced by the learned Attorney General—that both provisions produced the same effect—were accepted, the Constitution would have been drafted in identical language for the two articles. Since the Constitution uses different expressions, the Court reasoned that wherever the legislature intended to suspend the right it said so, and wherever it intended only to suspend the remedy it said so, and therefore the Court could not accept the Attorney General’s contention. The Court also turned to the Attorney General’s contention that Article 359, by empowering the President to suspend the right to move for enforcement of the fundamental rights enumerated therein, implicitly allowed Parliament to enact legislation in violation of those fundamental rights during the period when the right to approach the court was suspended. The Court said it could not accept that proposition. The Court distinguished between the suggestion that, because of the broad language of Article 359, the right to seek enforcement of fundamental rights infringed by a void law might be suspended, and the notion that the Constitution permitted Parliament, under the cover of executive authority, to pass void statutes. A detailed comparison of Articles 358 and 359, which the Court said it would undertake later, showed the opposite result. The Court could not attribute to Parliament, described as an august body, an intention to deliberately enact void legislation. The Court noted that Parliament may have enacted the impugned Act in good faith, believing that it was authorised by the Constitution. Nevertheless, the consequence was that a void Act now existed on the statute book, and under that Act the appellants were being detained illegally. Quoting Lord Atkin, the Court remarked that “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 disregard for the rule of law is contagious, and that if Parliament, having unintentionally passed a void law, allowed it to remain on the books and permitted its execution by the executive, such a practice could spread to the public, fostering a habit of lawlessness that is difficult to eradicate. Although it was not the Court’s jurisdiction to amend legislation, the Court suggested that the Act could be revised to bring it into conformity with the Constitution without diminishing its effectiveness. This discussion led the Court to the next question of whether the illegally detained appellants could invoke the jurisdiction of this Court.

The Court examined whether the appellants, who were detained illegally, could invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution, approach the High Court under Article 226 of the Constitution, or rely upon section 491 of the Code of Criminal Procedure, hereinafter referred to as the Code. The Court found it useful at this stage to set out the relevant constitutional provisions. Article 32(1) provides that “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Clause (3) adds that, “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).” Clause (4) states, “The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” Article 226(1) declares, “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.” Clause (2) of Article 226 further provides, “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 reads, “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 incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.” Article 359(1) provides, “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.” Article 33 confers on Parliament the power to modify the rights in Part III when applied to the Armed Forces charged with maintaining public order, and Article 34 enables Parliament to impose restrictions on those rights while martial law is in force in any area. The Court noted that the argument of counsel for the appellants concerning the construction of these provisions could be categorized under several heads.

The Court identified three principal submissions put forward by the appellants. First, it was submitted that Article 358 authorises the State to enact legislation only to the extent that such legislation infringes the freedom of speech and expression guaranteed by Article 19, and that Article 359 merely suspends the right to seek judicial enforcement of the fundamental rights that are specified in the President’s order. Consequently, the appellant argued that Article 359 could not be interpreted so as to expand Parliament’s legislative competence beyond the boundaries fixed by Article 358; rather, it should be confined to instances where the executive itself violates those rights. Second, the appellant contended that Article 359 does not permit the executive to achieve indirectly, through the President’s order, what Parliament is prohibited from doing directly under Article 358 and Article 13(2) of the Constitution; such an indirect method would amount to a constitutional fraud. Third, the appellant maintained that the invocation of Article 359 requires two conditions to be fulfilled: (i) the party must possess a recognised right to approach a court, and (ii) the suspension must relate solely to the enforcement of the rights conferred by Part III of the Constitution. The Court noted that the Constitution expressly grants the right to move the Supreme Court for the enforcement of those rights under Article 32. Accordingly, a President’s order issued under Article 359 could only suspend the right to approach the Supreme Court under Article 32 and could not affect the ability to file a petition under Article 226 of the Constitution. In the same vein, the appellants argued that the language of the President’s order could not validly restrict a pre‑existing statutory remedy contained in section 491 of the Code of Criminal Procedure.

The Court then explained that, in order to evaluate these submissions properly, it was essential first to appreciate the character of the fundamental rights enshrined in Part III of the Constitution and the remedies provided for their enforcement. The Court declined to engage in an academic debate over whether those rights are natural or primordial; irrespective of their philosophical origins, they are incorporated in Part III and are designated as fundamental rights. Article 13(2) declares that the State may not enact any law that takes away or diminishes those rights, and any law that contravenes this prohibition is void to the extent of the incompatibility. After rendering such a law void, the Constitution proceeds to prescribe the manner in which those rights may be enforced. Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. Article 32(2) clarifies that “appropriate proceedings” include the issuance of directions, orders or writs of the types specified in that clause. Thus, the right to move the Supreme Court is exercised in accordance with the procedure laid down in Article 32. Although Article 226 is not situated within Part III, it vests every High Court with jurisdiction to issue similar directions, orders or writs for the enforcement of the rights guaranteed by Part III. The Court stressed that a material distinction exists between Article 32 and Article 226: the former confers a guaranteed right to approach the Supreme Court, whereas the latter does not guarantee a right to approach the High Court, though the power to do so is implied by the procedural scheme.

The Court explained that the Constitution provides a guaranteed right to move the Supreme Court under Article 32, whereas Article 226 does not expressly guarantee a similar right to move a High Court. Nevertheless, the Court held that a proper construction of Article 226 necessarily implies a right to move the High Court, even though that right is not expressly guaranteed. The Court noted that Article 32 gives practical content to the right to move the Supreme Court by specifying the various procedural modes through which a person may approach that Court. Article 226 adopts the same procedural framework for seeking relief from a High Court, and the Court reasoned that this procedure must be read as furnishing the exercise of the right to move the High Court. When a statutory power is conferred on a High Court and a specific procedure is prescribed for a party to approach that Court, it is reasonable to infer that the party possesses a right to move the Court in accordance with that procedure. The Court identified a single distinction between Articles 32 and 226: the Supreme Court, once properly approached, cannot refuse to consider the merits of the petition, whereas a High Court may, in the exercise of its jurisdiction, decline to decide on the merits. The discretionary decision on merits by a High Court is nevertheless governed by established conventions and precedents. The Court further observed that Article 32(3) permits Parliament to enact legislation empowering other courts, within their local jurisdictional limits, to exercise any of the powers that the Supreme Court may exercise under clause (2). However, Parliament may only confer such powers and cannot bestow the guaranteed right to move a court that is conferred by clause (1). Consequently, any other court empowered under Article 32(3) stands in the same position as a High Court regarding the enforcement of fundamental rights, meaning that no person enjoys a guaranteed right to move such a court for that purpose. Only a discretionary jurisdiction analogous to that of a High Court may be granted to those courts, and, for the same reason, an aggrieved party will have a right to move those courts in the manner prescribed.

From this analysis the Court derived the principle that, under the Constitution, every individual possesses a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts, or any other court or courts created by Parliament, provided that the movement follows the prescribed procedural mechanisms, such as the issuance of writs, directions, or orders as described in the relevant provisions. With this foundation, the Court turned to examine Article 359. The Court observed that the language of Article 359 is clear and unambiguous, highlighting three expressions that appear in bold: (i) “right to move”, (ii) “any Court”, and (iii) “for the enforcement of such of the rights conferred by Part III”. The term “any Court” suggests a reference to more than one court, but it cannot be interpreted as any court anywhere in India, because the right to move must be tied to a court where a person can seek enforcement of fundamental rights. Accordingly, “any Court” can refer only to the Supreme Court, a High Court, or courts established by Parliament under Article 32(3). The Court rejected the contention that “court” should be confined solely to the Supreme Court, noting that the Article does not expressly limit the reference to the Supreme Court nor does it attach the guaranteed right of Article 32(1) to the phrase. The Court therefore concluded that the words “right to move” must be read as the right to move the Supreme Court or a High Court in the manner prescribed by Article 32(2) or Article 226(1), respectively.

In this case the Court examined the meaning of the expressions used in Article 359, namely “right to move”, “any Court” and “for the enforcement of such of the rights conferred by Part III”. The phrase “any Court” suggested that more than one court could be meant, but the Court held that it could not refer to every court in the country because a person could move only a court that possessed jurisdiction to enforce fundamental rights. Consequently the Court concluded that the reference must be limited to the Supreme Court, the High Courts, or courts that Parliament might create under Article 32(3). The Court rejected the argument advanced by counsel for the appellants that the word “court” should be confined to the Supreme Court, noting that the article did not expressly say “Supreme Court” nor did it state that the right to move was the guaranteed right under Article 32(1).

The Court then turned to the question of what the words “right to move” signified. It observed that the phrase was qualified by the clause “for the enforcement of such of the rights conferred by Part III”. Accordingly, the “right to move” must be understood as the right to approach either the Supreme Court or a High Court in the manner prescribed by Article 32(2) or Article 226(1) for the purpose of enforcing fundamental rights. The second limb of Article 359, which provides that “all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended”, was seen as referring only to proceedings that were instituted in exercise of the aforementioned right and not as clarifying the scope of the “right to move”. This construction allowed every expression in the article to be given full meaning. Under this interpretation, the temporary bar that could be imposed by a Presidential order under Article 359 was not limited to the guaranteed right of a person to move the Supreme Court, but also extended to the right of a person to move a High Court or a court created by Parliament for the enforcement of the fundamental rights specified in the order. Therefore the Court held that a Presidential order under Article 359 suspending the “right to move any court” with respect to certain fundamental rights encompassed both the right to move under Article 32 and the right to move under Article 226.

The Court acknowledged that a more difficult issue arose as to whether Article 359 could be interpreted so broadly as to empower the President to suspend all actions that a person might take under a statute or under common law in order to protect his liberty against unlawful state action. In other words, the Court considered whether a person who was detained illegally under a void law could approach a High Court under section 491 of the Code of Criminal Procedure, file a civil suit for damages, or pursue any other legal remedy that was otherwise available. The Attorney General argued that “any court” in Article 359 meant any court in India and that the phrase “enforcement of fundamental rights” covered any relief sought by a party if granting such relief necessarily involved a decision on whether any of the fundamental rights listed in the Presidential order had been infringed. The Court noted that this contention disregarded the constitutional scheme, which distinguishes among fundamental rights, constitutional rights, and statutory or common‑law rights, and therefore required separate analysis.

In the present matter, the Court observed that the contention advanced by the learned Attorney General—that any relief sought by a party, when such relief inevitably required a determination of whether any of the fundamental rights enumerated in the President’s order had been infringed, fell within the scope of the constitutional prohibition—failed to appreciate the constitutional scheme. The Constitution recognises three distinct 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 enforcement of his fundamental rights; under article 226 a person possessed a constitutional right to approach the High Courts for enforcement of the same. Moreover, parliament, exercising the authority conferred by article 245, could legislate to grant a person a right to move any court for a remedy that was broader in scope than the rights created by article 32 or article 226. Although parliament could not, except in the limited situations expressly provided for, curtail the substantive content of the fundamental rights contained in Part III, it was free to enact statutes that expanded the substantive and procedural rights of parties beyond those protected by Part III. In the same vein, statutes that had been enacted by a competent authority before the commencement of the Constitution and that survived under article 372 did not, by their very nature, infringe the fundamental rights created by the Constitution. Section 491 of the Code of Criminal Procedure was one such pre‑Constitutional statutory provision continued under article 372, and it did not, in any sense, create a right to move the High Court for the enforcement of fundamental rights. Consequently, the Court held that the Attorney General’s argument placed an undue strain on the clear language of article 359. In effect, the argument sought to equate the expression “a right to move for the enforcement of fundamental rights” with any relief that might be claimed in any proceeding before any court, whether the proceeding was initiated by the aggrieved party or was instituted suo motu, provided that the proceeding required a determination of the voidness of a law on the ground that it contravened the fundamental rights mentioned in the President’s order. The Attorney General further pressed the proposition that, in times of severe stress such as a declared war and the consequent emergency, a court should adopt a doctrine of “strained construction” to fulfil the purpose of article 359 and the President’s order. The Court therefore undertook a brief examination of the authorities cited by the Attorney General to ascertain whether any such novel principle of statutory construction existed. In that regard, the Court referred to the decision in Rex v. Halliday (L.R. 1917 A.C. 260, 272), a House of Lords judgment rendered in 1917 during the First World War. That case concerned regulation 14B of the Defence of the Realm (Consolidation) Regulation, 1914, which authorised the Secretary of State to order the internment of any person of hostile origin or association where, on the recommendation of a competent naval or military authority, such internment appeared expedient for the safety of the public or the defence of the realm. The regulation derived its authority from the Defence of the Realm Consolidation Act, 1914, section 1, sub‑section 1. By a majority, the House of Lords held that the Act conferred upon the King‑in‑Council, for the duration of the war, the power to issue regulations necessary for public safety and defence, and therefore the regulation in question was valid. Arguments that personal liberty should be restrained only after judicial enquiry, or that Parliament must expressly suspend the writ of habeas corpus if it intended to interfere with liberty, were rejected. Lord Atkin observed that the subject retained every right that the statutes conferred upon him to have tested and determined in a court of law.

The Court explained that the regulation authorized the internment of any person of hostile origin or association when a competent naval or military authority recommended it as expedient for securing public safety or the defence of the realm. This regulation derived its authority from the Defence of the Realm Consolidation Act, 1914, section 1, sub‑section 1. By a majority, the House of Lords held that the Act gave the King‑in‑Council, for the duration of the war, the power to issue regulations aimed at protecting public safety and the defence of the realm, and therefore the regulation in question was valid. It was argued that personal liberty should not be restrained without a judicial inquiry and that, if Parliament intended to affect personal liberty, it should have expressly provided for the suspension of the writ of habeas corpus. The Court rejected that argument. Lord Atkin observed that a subject retains every right conferred by statute to have the legality of his detention tested in a court of law by means of a writ of habeas corpus addressed to the custodian. He further stated that if Parliament enacts a provision permitting deprivation of liberty for matters previously not punishable, such enactment and the orders made under it, provided they are within legislative authority, do not infringe the writ of habeas corpus or any right derived from Magna Carta, because the Act and its orders become part of the law of the land. The Court noted that this decision did not create any new rule of construction; rather, it affirmed that Parliament remains supreme in England and, in exercising its wisdom, did not abolish habeas corpus but merely empowered the executive to issue regulations for public safety and defence. Consequently, the regulation did not exceed the authority granted by Parliament, and the House of Lords concluded that the detention was lawful.

The Court further observed that the controversial decision in the case cited as Riverside v. Sir John Anderson, which later attracted severe criticism, likewise did not establish a novel rule of construction. 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 the individual was of hostile association and that, because of this belief, it was necessary to exercise control over the person by detaining him. The legality of the detention depended on the interpretation of the explicit terms of regulation 18B. That regulation used the phrase “reasonable cause to believe any person to be of hostile origin.” The House of Lords, by a majority, interpreted the expression to mean that the Secretary of State deemed the belief reasonable. Though there was a strong dissent by Lord Atkin on the method of construction, the Court clarified that none of the learned Law Lords, in their speeches, articulated any new rule of construction specific to wartime conditions. The decision therefore reinforced the principle that the construction of such regulations must be based on their plain language and the intent of the authority that issued them, without invoking a special wartime interpretative doctrine.

In the earlier case, the House of Lords, by a majority, held that the wording in regulation 18B of the Defence (General) Regulations should be understood to mean that “the Secretary of State thinks fit to be reasonable”. A strong dissent was offered by Lord Atkin, who disagreed with the majority’s construction of the provision. The Court noted that, although the correctness of the majority’s interpretation was not relevant to the present decision, none of the Law Lords, in their speeches, articulated any new rule of construction that was specific to wartime conditions. Viscount Maugham observed that the court should approach the construction of regulation 18B without any special presumption about its meaning, except for the universal presumption that applies to Orders in Council and similar instruments. He explained that when there is a reasonable doubt about the meaning of the words used, the preferred approach is to adopt a construction that gives effect to the plain intention of those who issued the Order in Council, rather than a construction that would defeat that intention (see paragraph 82). In his dissenting judgment, Lord Atkin protested against a strained construction that would effectively grant the minister an unchecked power of imprisonment. He further stated 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” (see paragraph 83). The Court observed that these comments by the dissenting Lord at most suggest that the majority may have imposed a strained construction on the express wording of the regulation, but they do not indicate that the majority established any novel rule of construction. Lord Macmillan clarified the issue by stating that, first, the regulation under consideration was a wartime measure, but this circumstance did not authorize the courts to adopt different interpretative principles in war than in peace. He emphasized that the existence of war does not justify a relaxation of judicial vigilance in ensuring that the law is correctly applied, especially where the fundamental liberty of individuals is concerned; rather, it imposes a higher duty on the courts. Nevertheless, Lord Macmillan also recognized that in an emergency threatening the nation’s survival, a defence regulation might rightly be given a meaning that, because of its severe impact on personal liberty, the courts would be reluctant to attribute to a peacetime measure. He concluded that the purpose of the regulation was to protect public safety, and it was appropriate to interpret emergency legislation in a way that promotes rather than defeats its efficacy for the defence of the realm. This approach, he noted, aligns with a general rule that applies to the interpretation of all statutes and statutory regulations, whether enacted in peace or in war (see paragraph 84). The Court indicated that these observations should be viewed in the context of the earlier discussion.

The Court observed that it could not accept the view that the key phrase in question possessed only a single meaning, namely the meaning advanced by the appellant. The Court noted that if this were true, it would be puzzling that several learned judges had previously interpreted the same phrase in a substantially different way. Consequently, the Court held that the earlier judgment could not be relied upon as authoritative for the position advanced by the appellant. In substance, the Court affirmed that the principles governing statutory construction are identical in times of peace and in times of war, and that when the language of a statute is ambiguous, the Court is entitled to adopt an interpretation that furthers the purpose of the legislation rather than thwarting it. The Court further referred to the Privy Council’s decision in Nakkuda Ali v. Jayaratna (L.R. 1 [1951] A.C. 66), observing that the majority in that case limited the construction of Regulation 18B of the Defence (General Regulations, 1939) to the specific facts of that case and declined to extend that construction to Regulation 62 of the Defence (Control of Textiles) Regulations, 1945. Accordingly, the Court could not conclude that those decisions established a new rule of construction applicable only to wartime measures. The Court reiterated that the fundamental rule of construction requires courts to ascertain the legislature’s expressed intent from the words themselves; where the language is clear, the court must give the words their ordinary meaning, while where the language is ambiguous and capable of two reasonable meanings, the court may select the meaning that advances the legislative intent rather than one that defeats it. The Court then emphasized that the present matter did not involve a wartime regulation but a constitutional provision intended to govern the nation for the entire duration of the Constitution’s operation. Such a provision could not be strained to accommodate a temporary emergency, as a strained interpretation of a statute might be corrected by later legislation, but a strained reading of a constitutional article could have serious consequences. Even if Liversidge’s case ([1942] A.C. 206) had introduced a novel rule of construction, the Court held that this rule could not be applied to a constitutional provision. Finally, the Court quoted the principle from Gibbons v. Ogden ((1824) 6 L.Ed. 23) that the meaning declared by the words of a constitutional instrument is its definitive meaning, and that neither courts nor legislatures have the authority to add to or subtract from that meaning, especially given the solemn and deliberate nature of a constitution.

The Court observed that when dealing with the fundamental law of the land, the rule of construction acquires an exceptionally high level of importance. It emphasized that it must be absolutely clear and unmistakable that the people did not intend a meaning different from that which the language naturally conveys before any Court feels entitled to depart from the plain reading of a constitutional provision. This observation was recorded as paragraph 88 of the judgment. The Court further stated that while a constitution should be given a fair, liberal, and progressive interpretation so that its true purposes are advanced, such an approach must not distort the ordinary meaning of the words employed in any specific provision of the Constitution. This principle was noted in paragraph 89. The Court then set out the relevant wording of section 491 of the Code of Criminal Procedure, which provides that any High Court may, whenever it thinks fit, direct either that a person within the limits of its appellate criminal jurisdiction be brought before the Court to be dealt with according to law, or that a person who is illegally or improperly detained in public or private custody within those limits be released.

In paragraph 90, the Court reflected on the aforesaid rules of construction and posed the question of whether the exercise of the power under section 491 of the Code can be equated with a right to approach the High Court for the enforcement of any fundamental rights conferred by Part III of the Constitution that may be cited in the President’s order. The Court noted that determining the proper scope of the section was essential to answer this question. It observed that the provision is drafted in broad terms and confers a discretionary power on the High Court to issue one of the directions “whenever it thinks fit.” Unlike Articles 32 and 226, the exercise of this power is not channelled through the conventional procedural writs or orders, and consequently the technical requirements governing those writs do not limit the Court’s discretion. The Court then traced a brief historical background, noting that originally the Supreme Courts in India claimed the authority to issue a writ of habeas corpus, a power exercised by the King’s Bench Division in England. In 1861 Parliament enacted the Acts 24‑25 Vict. Chapter 104, authorising the establishment of High Courts of Judicature in India. The Letters Patent issued in 1865 expressly subjected these courts to the legislative authority of the Governor‑General in Council, granting them the same jurisdiction, power and authority as the former Supreme Courts but subject to the Governor‑General’s legislative power. Acting under this authority, the Governor‑General in Council issued successive Codes of Criminal Procedure in 1872, 1875, 1882 and 1898, and later amended certain provisions of the 1989 Code through the Criminal Law (Amendment) Act of 1923. The High Courts Act of 1861 also empowered the Legislature, if deemed appropriate, to withdraw the powers previously exercised by the High Courts as successors to the Supreme Courts.

Legislative enactments beginning in 1872 and in later years removed the authority of the High Courts to issue prerogative writs, and instead granted the High Courts a specifically defined statutory power. That statutory authority was amended several times and ultimately resulted in the present form of section 491 of the Code of Criminal Procedure. Attempts to revive the prerogative writs were rejected by the Calcutta High Court in the decision of Girindra Nath Banerjee v. Birendra Nath Pal ((1927) I.L.R. 54 Cal. 727) and by the Madras High Court in District Magistrate, Trivandrum v. Mammen Mappillai (I.L.R. 1939 Mad. 708). The Privy Council, while considering Matten v. District Magistrate, Trivandrum (L.R. (1939) 66 I.A. 222), endorsed those judgments and affirmed that the legislative Acts had eliminated the High Courts’ power to issue prerogative writs, leaving only the power created by statute. Under article 372 of the Constitution, the Code of Criminal Procedure, including section 491, remained effective until it was altered, repealed, or amended by a competent legislative body or other competent authority. Article 225 of the Constitution expressly preserved the jurisdiction and powers of the High Courts, subject to the remaining constitutional provisions. It is acknowledged that Parliament has not enacted any statute repealing section 491 of the Code. The statutory authority conferred on the High Courts by that section does not conflict with article 32, article 226, any other provision of Part III, or any other chapter of the Constitution. Consequently, it cannot be said that section 491 has been implicitly displaced by article 226, even to the extent that it permits the High Court to grant relief to persons who are unlawfully detained by the State.

Section 491, although framed as a remedial provision, presupposes the existence of a substantive right to liberty that mirrors the principle of the rule of law recognized in England and adopted in India. The fundamental concept is that no individual may be deprived of personal liberty except in accordance with the law of the land. When a person is detained illegally or improperly, the High Court possesses the authority to order that person's release whenever it deems appropriate. The provision does not expressly require a formal application, nor does it dictate that a specific individual must approach the court. Its language is sufficiently broad to allow the High Court to act suo motu, that is, on its own initiative, upon receiving information about an unlawful detention. Moreover, the section does not create a dichotomy between jurisdiction exercised on the basis of an application and jurisdiction exercised suo motu; therefore, even if an application filed before the High Court cannot be acted upon because of a procedural defect or because the applicant withdraws, the Court remains free to intervene on its own motion when presented with relevant information.

The judgment observed that although several High Courts had framed their own procedural rules, such rules did not bear much relevance for the construction of the statutory provision in question. In simple terms, the High Court possessed an absolute discretion to order the release of three persons who had been illegally detained, whenever the court became aware of such detention by whatever source brought the fact to its notice. This power of the High Court pre‑existed the adoption of the Constitution and also pre‑dated the conferral of fundamental rights on the people under the Constitution. The substantive and procedural rights that flowed from Part III of the Constitution and from Article 226 on one side, and the rights that arose under section 491 of the Code of Criminal Procedure on the other side, were therefore distinct. Under Articles 32 and 226 an aggrieved party could approach the Supreme Court or the High Court respectively only in the manner prescribed by those articles, namely by way of the writs and orders enumerated therein. The petitioner had to seek the enforcement of a fundamental right and, to obtain relief, had to demonstrate that a fundamental right of his own had been infringed by the State, thereby warranting the court’s appropriate relief. Both the right and the procedure for its enforcement were creations of the Constitution.

In contrast, section 491 of the Code assumed the existence of the rule of law and empowered the High Court to direct the release of persons held in illegal detention, without being bound by the technical procedures laid down by the Constitution. When an individual approached the High Court alleging that either he or another person was illegally detained, the court would call upon the detaining authority to justify the legality of the detention. The burden of proof rested on the custodian, who had to show that the detention was effected under a lawful process; failure to meet that burden would result in the release of the detained person. It was acknowledged that the detaining authority must also satisfy the court that the law invoked for the detention was itself valid. Moreover, while examining the validity of that law, the court might have to consider whether the law offended any of the fundamental rights enumerated in Part III of the Constitution. However, such an examination did not transform the proceeding into a suit filed in the exercise of the petitioner’s right to move the High Court for enforcement of his own fundamental right. The essential distinction lay in the fact that one proceeding concerned the enforcement of a specific petitioner’s fundamental right, whereas the other concerned a judicial determination of the constitutionality of a statute because of its general infringement of fundamental rights. The judgment further noted that the right and the relief enjoyed a technical and specific significance assigned by the Constitution, and that they could not be

The Court explained that the phrase “equated with the mode of approach to the High Court under section 491 of the Code or with the nature of the relief that can be given thereunder” is incorrect. The wording “whenever it thinks fit” gives the court an absolute discretion to decide whether to exercise the power granted by the statute, based on the specific circumstances of each case. In contrast, the word “may” in a statutory provision is sometimes interpreted as creating a duty for the authority to act when the situation warrants such action. The expression “whenever it thinks fit” does not impose any such duty and therefore does not limit the court’s absolute discretion. Although a High Court is ordinarily expected to intervene when a citizen’s liberty is unlawfully infringed by any authority, the presence of an unrestricted discretion means that, in exceptional situations, the court may decline to provide relief. This unrestricted discretionary jurisdiction under section 491 of the Code cannot be equated 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 that discuss the scope of section 491. In the case of Alam Khan v. The Crown, reported in the 1947 Lahore Law Reports at page 274, the Full Bench of the Lahore High Court, speaking through Justice Ram Lall for the majority, examined the relevant portion of the section and observed that the language places no limitation on the class of persons who may approach the High Court concerning an individual in custody. The Court may, if it deems appropriate after hearing the petition, order that the detained person be dealt with according to law. In a later decision, Ramji Lal v. The Crown, reported in the 1949 East Punjab Law Reports at page 28, a Full Bench of the East Punjab High Court, through Justice Mahajan, described the provision as being drafted in very broad terms, granting the court authority to issue directions whenever it deems fit. 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 of an illegal detention. The manner in which a judge must be satisfied does not diminish the jurisdiction that section 491 bestows. Finally, the Court cited King Emperor v. Vimlabai Deshpande, reported in the 1946 Indian Appeals at page 144, where a police officer had arrested the respondents under sub‑rule 1 of rule 129 of the Defence of India Rules, 1939, which permitted arrest without warrant of any person reasonably suspected of acting in a way prejudicial to public safety or the efficient prosecution of the war. The Judicial Committee held that the burden of proof rested on the police officer to demonstrate to the satisfaction of the court that reasonable grounds for suspicion existed. When the officer failed to meet this burden, the Privy Council affirmed that the High Court was correct in ordering the release of the detained individual under section 491 of the Code of Criminal Procedure. These authorities collectively demonstrate that section 491 of the Code does not create a right for any aggrieved party to move the court; rather, the court may exercise the statutory power at its own discretion whenever it deems appropriate.

In the case of King Emperor v. Vimlabai Deshpande, the Judicial Committee considered an arrest made by a police officer under sub‑rule 1 of rule 129 of the Defence of India Rules, 1939. That sub‑rule permitted any police officer to arrest without a warrant any person whom he reasonably suspected of having acted in a manner prejudicial to public safety or to the efficient prosecution of the war. The Committee held that the burden of proof rested on the police officer to demonstrate to the satisfaction of the court, before which the arrest was contested, that he had reasonable grounds for his suspicion. The Committee further declared that if the officer failed to meet that burden, an order issued 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 did not discharge the onus, the Privy Council affirmed the High Court’s decision to release the person from custody under section 491 of the Code of Criminal Procedure. This precedent establishes that when a police officer detains a person, the officer bears the burden of establishing the legality of that detention.

The authorities cited therefore demonstrate that section 491 of the Code does not create a right for an affected party to move the High Court; instead, the court may exercise the statutory power at its discretion whenever it becomes aware of an illegal detention. The Court may be approached on its own initiative or by a petition, but the provision does not guarantee a procedural right to file an application. The discussion may be framed by three questions: whether any person has a right to move the High Court under section 491 to enforce a fundamental right; whether a detained person or a representative must allege that a fundamental right has been infringed and seek relief; and whether the Court is obligated to enforce that right once it is established. All three questions receive a negative answer. Section 491 confers no entitlement on the detainee to approach the Court for enforcement of a fundamental right, nor does it impose a duty on the Court to grant such relief. The provision is a discretionary jurisdiction intended merely as a safeguard against arbitrary action.

Another aspect concerns Article 359 of the Constitution, which deals with the suspension of certain fundamental rights and is unrelated to statutory powers created by Parliament. Article 359 addresses the constitutional right to move a court and the constitutional enforcement of that right. By contrast, ordinary statutes such as section 491 may be amended or repealed by Parliament in response to changing circumstances; for example, Parliament could have repealed or altered section 491 if it so desired. In summary, Article 359 provides for the suspension of specific constitutional rights in the manner prescribed therein, while statutory rights remain within the domain of legislative amendment. Consequently, the intention of the Constitution’s framers in enacting Article 359 does not extend to modifying the discretionary jurisdiction granted to High Courts under section 491 of the Code of Criminal Procedure.

In considering whether Article 359 would be frustrated if section 491 of the Code of Criminal Procedure were retained, the Court found that the proposition was unconvincing. The Court observed that, had Parliament chosen to amend section 491, which it was free to do whenever it deemed necessary, the difficulty highlighted by the Attorney General could not have arisen. Consequently, the Court held that the phrase “right to move any Court for the enforcement of such of the rights conferred by Part III” must be understood to refer solely to the constitutional right to approach a court under Article 32 or Article 226 for the particular relief contemplated, and that it cannot be extended to the statutory power given to High Courts by section 491 of the Code without distorting the language of the provision. Accordingly, the expression “all proceedings pending in any Court for the enforcement of the rights” that appears in the second limb of Article 359 must also be taken to mean only those proceedings that were instituted in exercise of the constitutional right described in the first limb of the article. Thus, the Court concluded that the statutory mechanism of section 491 cannot be used to bypass the constitutional safeguard embodied in Article 359. Accordingly, any pending proceeding that does not arise from the constitutional right to move a court remains outside the protective umbrella of Article 359.

The Court then turned its attention to several ancillary points that had been raised by counsel during the hearing. One of the submissions put forward for the respondents contended that while Article 358 bars the legislature from enacting laws that derogate from fundamental rights other than those secured by Article 19, Article 359 authorises the President, by an indirect mechanism, to broaden that legislative disability and therefore should be interpreted as applying only to executive actions. The Court rejected that view, finding that the argument was not supported by the language of the constitutional provisions. It stated that Article 359, on its face, does not expand the legislative competence of Parliament or a State Legislature. It does not permit them to enact statutes during the period specified in the President’s order that would infringe the protected fundamental rights. Nor does it give the legislatures authority to pass void laws; rather, it merely empowers the President to suspend the right to move a court for the duration specified in his order. When that period ends, the aggrieved person may again approach the court in the manner prescribed by the Constitution. The Court noted that, despite the limitations of Article 358, it is possible for void statutes to be passed and for executive measures to be taken, whether unintentionally or otherwise, and that Article 359 is intended to defer the enforcement of the rights of those affected until the President’s order expires. The Court further explained that the argument against this interpretation collapses when one recalls that Article 358 also shields executive actions that infringe Article 19, yet Article 359 continues to protect against the exercise of the right to move any court in respect of such actions not saved by Article 358. By the same token, laws that are not saved by Article 358 cannot serve as a basis for invoking the constitutional right to move a court during the suspension period.

In this case, the Court observed that the wording of Article 359 was sufficiently broad to include laws that were enacted in breach of the specific fundamental rights mentioned in the Constitution. One of the contentions raised was that, when Article 358 was read together with Articles 13(1) and (2), the constitutional position was that every law contravening any fundamental right except those protected by Article 19 would become void during an emergency. The argument further claimed that by issuing his order, the President had, in effect and in substance, given validation to statutes that infringed Articles 14, 21 and 22, and that therefore the order amounted to a fraud upon his powers. The Court rejected this line of attack, calling it meritless and stating that it rested on a misunderstanding of the doctrine of fraud on powers. Referring to the earlier decision in Gullapally Nageswara Rao v. Andhra Pradesh Road Transport Corporation, the Court reiterated that a legislature may legislate only within its constitutional competence, and that its competence may be limited either by explicit legislative entries or by the fundamental rights guaranteed by the Constitution. The Court explained that the legislature may not exceed its field of competence, whether directly or indirectly, and that the judiciary must examine whether a law, although apparently within the legislature’s formal authority, in effect and substance goes beyond that authority. If the legislature truly possesses the power to enact the law, the motives behind the legislation are irrelevant. The Court noted that similar observations were made in Gajapati Narayan Deo v. The State of Orissa. Applying the same reasoning, the Court held that the President could not act beyond the limits set by Article 359. As long as the President did not exceed those limits, his order could not be characterized as a fraud on his powers, because fraud on power involves the exercise of a power that was not conferred, whereas an act that falls within a conferred power is valid regardless of the actor’s intention or the effect of the act. According to the Court’s construction of Article 359, the President possessed a clear constitutional authority to suspend the right to approach the courts during the emergency. The fact that Parliament might, by relying on that order, enforce statutes that were void did not transform a legitimate exercise of presidential power into a fraud on his powers. The Court then turned to the next argument, which alleged that the President’s order exceeded the authority granted under Article 359. The contention was that, under Article 359, any order issued by the President could pertain to a period of time, to the whole of India, or to a part of the territory, but could not be limited to a particular class of individuals. It was argued that because the order applied only to persons who had been deprived of their rights under the Defence of India Ordinance, it was not sanctioned by Article 359. The Court found no merit in this contention. It observed that the order suspended the right to move the courts for enforcement of the specified rights for the duration of the emergency and that the order applied to the entire country. Although only those individuals who were affected by the Defence of India Ordinance would be in a position to invoke the right to approach the courts, this did not mean that the order was confined to a specific class of persons.

In this case the petitioners argued that the President’s order, which suspended the right to move the Court for persons whose rights under the Defence of India Ordinance had been taken away, was not authorised by Article 359 of the Constitution because it allegedly applied only to a limited class of persons. The Court found that the argument had no merit. The order expressly suspends the right to seek enforcement of the enumerated rights for the duration of the emergency and it does so for the whole territory of India. The fact that only those individuals who have been deprived of their rights by the Defence of India Ordinance are consequently unable to approach the Court does not convert the order into one that is limited to a particular class of persons. The Ordinance itself has nationwide effect, and by its very terms only those persons who are actually affected by it would attempt to move the Court. That logical consequence does not mean that the order is confined to a class. The Court also considered the next submission that the impugned section suffered from excessive delegation of power and that the rules made under the Act exceeded the authority given to the Government. The Court rejected both of these submissions and noted that there was nothing further to add beyond the reasoning already expressed in the judgment of the earlier Judge.

The Court further observed that, notwithstanding the President’s order, certain questions could still be examined under Articles 32 and 226 of the Constitution. The order is conditional: it continues to suspend the right only when a person has been deprived of a right by the Defence of India Ordinance, 1962, or by any rule or order made under that Ordinance. If a deprivation arises from a source other than the Ordinance or its subordinate rules, the suspension does not operate. Likewise, if an order is issued beyond the power granted by the Ordinance, or if a detention is made in bad faith, such an order would not be covered by the President’s order. On the basis of this analysis the Court articulated three conclusions. First, the detainees are unable to invoke their fundamental rights under Articles 21, 22 and 14 while the President’s order remains in force. Second, this limitation does not stop the High Court from ordering the release of detainees under section 491 of the Code of Criminal Procedure when the detention is founded on a law that is void because it infringes Articles 14, 21 and 22. Third, the President’s order does not bar the petitioners from establishing, before the courts of jurisdiction under Articles 32 or 226, that the detention orders were not issued pursuant to the Defence of India Ordinance.

The Court explained that a detention order could be considered unlawful if it was issued (i) outside the limits set by the Ordinance or the Act, (ii) beyond the authority that the Ordinance or the Act conferred, or (iii) if the order was made in bad faith or through a fraudulent exercise of power. After outlining these possible grounds for invalidity, the Court moved to its concluding observations. The Court observed that Parliament has three possible courses of action. First, Parliament may enact a new statute that is fully compatible with the Constitution and that does not violate any fundamental rights except those that are protected under Article 19. Second, Parliament may amend section 491 of the Code of Criminal Procedure so that the enforcement of laws later declared void can continue under a revised procedural framework. Third, Parliament may choose to pursue both of these options simultaneously. The Court made clear that it was not the role of the judiciary to advise Parliament which of these routes would be the most appropriate for the legislature to follow.

Consequently, the Court directed that the present petitions should be transferred to a Constitution Bench for consideration of the constitutional questions that had been raised. In line with the majority view, the Court ordered that the specific constitutional points raised in each appeal be dismissed. Each appeal, however, was to be listed separately and set down before the Constitution Bench so that the remaining substantive contentions in each case could be examined and decided individually.