Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura

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

Court: Supreme Court of India

Case Number: Habeas Corpus Petition No. 15 of 1963

Decision Date: 29 April 1963

Coram: Bhuvneshwar P. Sinha, J.C. Shah, Raghubar Dayal, J.R. Mudholkar

In this case the matter was titled Sree Mohan Chowdhury versus the Chief Commissioner, Union Territory of Tripura and was decided by the Supreme Court of India on the twenty‑ninth day of April, 1963. The opinion was authored by Chief Justice Bhuvneshwar P. Sinha, who was joined by Justices J. C. Shah, Raghubar Dayal and J. R. Mudholkar. The petitioner was Sree Mohan Chowdhury and the respondent was the Chief Commissioner of the Union Territory of Tripura. The judgment bears the citation 1964 AIR 173 and also appears in the Supreme Court Reports as 1964 SCR (3) 442. Subsequent citation references include reports from 1964, 1966, 1967, 1968, 1976 and 1977, indicating the decision’s continued relevance. The statutory framework discussed in the judgment involved provisions relating to fundamental rights, the proclamation of emergency, detention powers, the right to approach the Supreme Court and the suspension of that right under Articles 21, 22 and 32 of the Constitution of India. Additionally, the judgment referred to the President’s Order dated 3 November 1962, the General Clauses Act 1897 (section 8), the Defence of India Ordinance 1962 (section 4), and the Defence of India Act 1962 (section 48).

The Court’s headnote explained that on 26 October 1962 the President issued a proclamation of emergency, which was subsequently endorsed by both houses of Parliament, and on the same day promulgated the Defence of India Ordinance 1962. Under section 3 of that Ordinance the Central Government issued the Defence of India Rules 1962. By way of a Presidential Order dated 3 November 1962, made under Article 359(1) of the Constitution, the right of any person to approach any court for enforcement of the rights guaranteed by Articles 21 and 22 was suspended, subject to the condition that the person had been deprived of those rights by the Ordinance or any rule made thereunder. On 20 November 1962 the respondent issued an order under rule 30 of the Defence of India Rules directing the detention of the petitioner. The petitioner consequently filed a petition under Article 32 of the Constitution challenging his detention. The respondent argued that the petition was not maintainable, whereas the petitioner contended that the guaranteed right to approach the Supreme Court under Article 32 could not be suspended and that the President’s Order was ineffective because it depended on the continued existence of the Ordinance, which had been repealed by the Defence of India Act 1962. The Court held that the petition was not maintainable. Although the Court’s power to issue a habeas‑corpus writ remained intact, the petitioner’s right to move the Court for such a writ was suspended by the President’s 443 Order. The Order was interpreted as suspending only the rights under Articles 21 and 22, not every right of a citizen to approach the Supreme Court. Consequently, because his right to approach the Court was suspended, the petitioner could not challenge the validity of the Act or the Rules, and the repeal of the Ordinance by the Defence of India Act 1962 did not render the President’s Order ineffective.

By operation of the saving provision contained in section 48 of the Defence of India Act, any rule that was made, anything that was done, or any action that was taken under the Defence of India Ordinance was to be treated as if it had been made, done, or taken under the Act itself. In addition, the reference made to the Ordinance in the President’s Order was to be interpreted, in accordance with section 8 of the General Clauses Act, as a reference to the Act. The term “instrument” used in section 8 was understood to include the President’s Order.

The original jurisdiction of the Court involved a habeas corpus petition numbered fifteen of the year 1963, filed under article 32 of the Constitution of India. Counsel for the petitioner was R. K. Garg, while the respondents were represented by S. V. Gupta, the Additional Solicitor‑General of India, together with D. R. Prem, R. H. Dhebar and R. N. Sachthey. An intervener was represented by S. C. Agarwal, R. K. Garg, M. K. Ramamurthi and D. P. Singh. The judgment was delivered on 29 April 1963 by Chief Justice Sinha C. J.

On 26 October 1962 the President, having become convinced that a serious national emergency existed because the security of India or any part of its territory was threatened by the aggression of China, issued a proclamation declaring an emergency under article 352 of the Constitution. This proclamation was laid before both Houses of Parliament on 8 November 1962, received the approval of the Rajya Sabha on 13 November 1962 and the approval of the Lok Sabha on 14 November 1962. Following the proclamation, Parliament was not in session, and the President, satisfied that immediate action was required to exercise the powers conferred by clause (1) of article 123 of the Constitution, promulgated the Defence of India Ordinance, number four of 1962, on the same day, 26 October 1962.

Section three of the Ordinance authorised the Central Government to make any rules it considered necessary or expedient for securing the defence of India and civil defence, public safety, maintenance of public order, the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, by issuing a notification in the Official Gazette. Acting upon those powers, the Central Government issued the Defence of India Rules, 1962, by way of a notification in the Official Gazette dated 5 November 1962. Rule thirty of those Rules provided that the Central Government or a State Government, if satisfied that a particular person might act in a manner prejudicial to the defence of India, civil defence, public safety, public order, India’s foreign relations, or the efficient conduct of military operations, could make an order directing, among other things, that the person be detained.

During the period that the emergency proclamation remained in force, the President issued, on 3 November 1962, an order suspending the right of any person to approach any court for enforcement of the rights guaranteed by articles 21 and 22 of the Constitution. This suspension was framed as an exercise of the powers conferred by clause (1) of article 359 of the Constitution and was limited to the duration of the emergency proclamation. The order further stipulated that the suspension applied to any person who had been deprived of such rights under the Defence of India Ordinance, 1962, or any rule or order made thereunder.

In this matter, the President issued an order that temporarily prohibited any person from approaching a court to enforce the rights guaranteed under Articles 21 and 22 of the Constitution. The order was made under the authority granted by clause (1) of Article 359. It declared that the right of any individual to file a suit for the enforcement of the rights in Articles 21 and 22 would remain suspended for the entire period during which the Proclamation of Emergency—issued under clause (1) of Article 352 on 26 October 1962—was in force. The suspension applied only to persons who had been deprived of those rights by the Defence of India Ordinance, 1962 (4 of 1962), or by any rule or order made thereunder.

The Chief Commissioner of Tripura, exercising the power conferred by Rule 30 of the Defence of India Rules, 1962, issued an order of detention against the petitioner on 20 November 1962. The order, numbered F. 22 (59)‑PD/62, was dated from the Office of the Chief Commissioner in Agartala and stated that the Commissioner was satisfied that Shri Bipul, also known as Mohan Chaudhri, son of Sri Bimala Charan Chaudhri of Sutarmura, P.S. Bisalgar, should be detained in order to prevent him from acting in any manner prejudicial to the defence of India, civil defence, public safety, the maintenance of public order, India’s relations with foreign powers, and the maintenance of peaceful conditions in Tripura. Acting under Rule 30 read with sub‑rule (11) of Rule 2 and all other applicable powers, the Commissioner directed that the petitioner be detained in the Central Jail at Agartala until further orders, and the order was signed by S. P. Mukerjee, Chief Commissioner, Tripura.

Subsequently, on 3 December 1962, the Chief Commissioner issued another order, also numbered F. 22 (59)‑PD/62, directing that the detainee be transferred from Agartala Central Jail to Hazaribagh Central Jail in Bihar. The order was issued under the authority of sub‑rule (5) of Rule 30 read with sub‑rule (11) of Rule 2 and all other enabling powers. It ordered the transfer of Shri Bipul Chaudhury, alias Mohan, son of L. Bimala Charan Chaudhury of Sutarmura, Bishalgarh P.S., to Hazaribagh Central Jail, Bihar, for detention there until further orders. The order further noted that the Government of Bihar had given its consent for the removal, as evidenced by telegram No. 940‑Political Special dated 1 December 1962. This order was also signed by S. P. Mukerjee, Chief Commissioner, Tripura. During this period, the petitioner filed a petition under Article 32 of the Constitution seeking a writ of habeas corpus challenging his detention; the petition was dated, although the specific date is not recorded in the material presented.

On 30 November 1962, while the petitioner remained confined in Agartala Central Jail, he filed a petition under Article 32 of the Constitution seeking a writ of habeas corpus. The authorities of the Tripura Administration did not immediately forward that petition to the Court. Consequently, the petitioner, after being transferred to Hazaribagh Central Jail in Bihar, dispatched another petition dated 15 December 1962 and again on 18 December 1962, invoking contempt proceedings against the Chief Commissioner of the Union Territory of Tripura. In that petition he recounted the circumstances of his detention and asserted that, during his incarceration at Agartala, he had submitted a petition under Article 32 which had been withheld and not sent to the Court. He further averred that the jailor of Agartala Central Jail had informed him that the petition had been transmitted to the Tripura Administration for a determination of whether the writ fell within the ambit of the Defence of India Rules. The petition was subsequently placed before the Court on 28 January 1963, at which time the Court ordered that notice be issued to the opposite party.

In compliance with that notice, Shri S.C. Mazumdar, the Judicial Secretary of the Union Territory of Tripura, filed an affidavit stating that he had attended to the matter raised by the notice and that he had no intention of disregarding or disobeying the authority of the Court. He also tendered an unconditional apology on his own behalf and on behalf of the Chief Commissioner of Tripura. Furthermore, he produced the original petition filed under Article 32 on 30 November 1962 and explained that, upon review of the Defence of India Rules and the President’s order dated 3 November 1962, he had concluded that the petition was not maintainable and therefore “nothing need be done”. He later admitted that his assessment was erroneous, acknowledging that after consulting the Government counsel he realized that the Government should not have decided on maintainability, but should have forwarded the petition to the Court. He asserted that his advice to the Tripura Administration was given in good faith and expressed deep regret that his actions had resulted in a wrongful act by the administration. The Division Bench, by its order dated 18 February 1963, accepted Mazumdar’s unconditional apology and directed that the habeas corpus petition be posted for a preliminary hearing. Subsequently, the Constitution Bench, by its order dated 27 March 1963, directed issuance of the rule and a hearing of the case within ten days. As the petitioner appeared at the hearing, the Court directed that he be detained in Delhi Jail until the writ petition was disposed.

When the matter was scheduled for a hearing, the Court ordered that, because the questions raised involved important constitutional considerations, the petitioner should be represented by counsel. The Court recognised the extensive work undertaken by Mr R K Garg on behalf of the petitioner and acknowledged that he had presented all relevant arguments for the Court’s consideration. The learned Additional Solicitor‑General appeared for the respondent, the Chief Commissioner of the Union Territory of Tripura, and submitted a show‑cause statement. The Court heard fully the submissions of counsel for both sides.

During the proceedings an intervention petition was filed by Shri Raj Kumar Vohra, who was detained by the District Magistrate of Saharanpur in a similar writ petition under Article 32 of the Constitution. Because the issues raised in his petition were substantially the same as those raised in the present case, the Court permitted his intervention and allowed him to present his arguments.

The counsel for the respondent raised a preliminary objection to the hearing of the writ petition on its merits. He argued that the President’s order dated 3 November 1962 had suspended the enforcement of the rights guaranteed by Articles 21 and 22 of the Constitution, and therefore the petitioner could not invoke Article 32 to enforce the right he claimed. In response, Mr Garg argued vigorously that the right granted by Article 32 could not be suspended under Article 359, because that article did not empower the suspension of the very right to approach the Court. He further asserted that the right to file a petition under Article 32 was itself a guaranteed right and that the Presidential order had not suspended that specific right. Mr Garg also contended that the suspension was conditioned upon the existence of a valid Ordinance and the rules framed thereunder. He maintained that the condition precedent was not satisfied because Ordinance IV of 1962 was invalid for lack of legislative competence and had ceased to have effect when it was repealed by Act LI of 1962. Consequently, he argued, any immunity from attack would apply only to actions taken under the Ordinance; since no fresh order was issued by the President under Article 359 after the Ordinance was replaced by the Act, the petitioner was entitled to proceed to the merits of the case. He further claimed that the Defence of India Act and the rules made under it were unconstitutional.

The Court found the preliminary objection to be well‑founded. Accordingly, it informed the parties that, having accepted the validity of the preliminary objection, the Court would not consider the merits of the petition at that stage. The Court also indicated that the reasons for arriving at that conclusion would be set out subsequently. The Court then began to explain its reasoning, observing that the right to approach the Court for the enforcement of fundamental rights guaranteed by the Constitution is itself a guaranteed right, but that clause (4) of Article 32 expressly provides that this right may be suspended in accordance with the provisions of the Constitution.

The right to move this Court for the enforcement of fundamental rights is itself a guaranteed right, but clause (4) of Article 32 provides that such a right may be suspended in accordance with the provisions of the Constitution. The Court restated the provision in positive terms, observing that the Constitution says: “The right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.” In the present case, the Constitution itself supplies the circumstances under which a suspension may occur. When the President proclaimed an Emergency on 26 October 1962, the freedoms enumerated in Article 19 were suspended, causing the power to make any law or take any executive action to remain unrestricted for as long as the proclamation continued, as prescribed by Article 358. In addition, during the Emergency the President was empowered by Article 359(1) to issue an order suspending the right of any person to approach a Court for the enforcement of the Fundamental Rights contained in Part III of the Constitution. Accordingly, the President’s order dated 3 November 1962 expressly suspended the right of any person to move any Court for the enforcement of the rights conferred by Articles 21 and 22 for the duration of the Emergency. On its face, this meant that the petitioner’s right to move this Court for a writ of habeas corpus, as alleged in the present petition, remained suspended throughout the Emergency period.

Nevertheless, the petitioner contended that Article 359 did not authorise the suspension of the right guaranteed under Article 32, and that, therefore, the operation of Article 32 had not been suspended by the President. The Court found this contention wholly unfounded. While the President’s order did not affect the Court’s inherent power to issue a writ of habeas corpus, it did suspend the petitioner’s personal right to invoke that power, because the order was issued under Article 359(1). The order did not extinguish every citizen’s right to move the Court; it limited only the right to enforce the provisions of Articles 21 and 22. Consequently, as a result of the President’s order, the petitioner’s individual right to approach this Court was suspended, even though the Court’s authority under Article 32 remained intact. This suspension denied the petitioner locus standi to enforce any right, if such a right existed, during the Emergency.

The petitioner further argued that the President’s order of 3 November 1962 was conditional upon the existence of a valid ordinance and that the rules framed or orders made thereunder were themselves valid. In other words, the petitioner asserted that…

It was submitted that the petitioner could question the validity of the Ordinance, but the Court observed that such a submission merely rested on a logical circle. The Court explained that to examine whether a particular ordinance or legislative enactment is valid, the person who comes before the Court must possess locus standi. Without such standing, the Court would decline to entertain any petition that seeks to challenge the law’s constitutionality. The Court noted that, because of the President’s Order issued under article 359 (1) of the Constitution, the petitioner had lost his locus standi for the duration of the Emergency, a point that had already been emphasized. Consequently, the Court concluded that the petition could not be maintained.

Nevertheless, an alternative line of argument was raised. Assuming that the Ordinance was valid and that the President’s Order operated against the petitioner, the petitioners pointed to the final clause of the President’s Order, which began with the words “if such person…”. They argued that this condition was not satisfied because the Ordinance had been repealed by the Defence of India Act, 1962 (referred to as the Act (LI of 1962)). This raised the question of what legal effect those words would have. The learned Solicitor‑General presented his argument in two alternative ways. First, he asserted that the wording merely described the individual who had been detained and did not impose a condition precedent, as the petitioner claimed. While the Court found this argument difficult to accept at first glance, it chose not to pursue it further, given the conclusion it had already reached on the alternative basis.

In his second alternative, the Solicitor‑General referred to section 8 of the General Clauses Act, 1897, and to section 48 of the Act (LI of 1962). Section 48 repealed Ordinances 4 and 6 of 1962 but provided that anything done or any action taken under those Ordinances would be treated as if it had been done under the Act, as if the Act had commenced on 26 October 1962. The provision read: “48 (1). The Defence of India Ordinance, 1962 and the Defence of India (Amendment) Ordinance 1962, are hereby repealed. (2) Notwithstanding such repeal, any rules made, anything done or any action taken under the Defence of India Ordinance, 1962, as amended by the Defence of India (Amendment) Ordinance, 1962 shall be deemed to have been made, done or taken under this Act as if this Act had commenced on the 26th October 1962.” The petitioner contended that, under subsection (2) of section 48, the detention order issued against him would be considered as having been made under the Defence of India Act, 1962. Accordingly, the petitioner argued that the President’s Order of 3 November 1962, which referred to the detention order issued under the Defence of India Ordinance and its Rules, should be held entirely inoperative. The discussion noted that the Ordinances in question had been promulgated

In this case, the Court observed that the President had issued the relevant Ordinances while Parliament was not in session, and that those Ordinances possessed the same force and effect as an Act of Parliament. However, the Court noted that each Ordinance was required to cease operating six weeks after Parliament reconvened. Consequently, the Court explained that, in order for the special measures intended to protect public safety to continue beyond that period, the Parliament had to replace the Ordinances with legislation containing the same provisions, together with any necessary additions or alterations. Accordingly, the Defence of India Act of 1962 was enacted, and its preamble expressly referred to the President’s proclamation of emergency and the need to provide special measures for public safety and interest. The Act became effective on 12 December 1962.

The Court further explained that, by operation of section 48 of the Act, the earlier Ordinances were repealed, yet all actions taken and rules made under those Ordinances were deemed to have been made or taken under the Act, as if the Act had commenced on 26 October 1962, the date on which Ordinance 4 had been promulgated. The President’s Order of 3 November 1962, which suspended the petitioner’s rights under Articles 21 and 22 of the Constitution, had been issued while Ordinance 4 of 1962 was still in force; therefore, the Order necessarily had to consider the factual situation that existed at that time.

Turning to the construction of the Order, the Court cited section 8(1) of the General Clauses Act, which governs the interpretation of the Defence of India Act, 1962. That provision provides that when an Act repeals and reenacts a provision of a former enactment, any reference in another enactment or instrument to the repealed provision shall, unless a contrary intention appears, be read as a reference to the reenacted provision. The Court asked whether this rule applied to the President’s Order of 3 November 1962, which suspended the petitioner’s right to approach the Court.

The Court noted that it was not disputed that section 8(1) applied to the construction of the Defence of India Act, which repealed and reenacted the Ordinances. The remaining question, the Court said, was whether the same principle extended to the words of the President’s Order that referred to a person “deprived of any such rights under the Defence of India Ordinance, 1962 (Ordinance 4 of 1962) or any rule or order made thereunder.” To answer this, the Court examined whether the President’s Order qualified as an “instrument” within the meaning of section 8. Since the General Clauses Act does not define “instrument,” the Court adopted the ordinary legal meaning, drawing on Stroud’s Judicial Dictionary, which describes an instrument as a writing of a formal legal kind, potentially including deeds, wills, awards, Acts of Parliament, and other formal documents. The Court concluded that, in the context of the General Clauses Act, the term “instrument” must be understood to encompass a formal legal writing such as an Order made under a statute or subordinate legislation or any document of a formal character issued under constitutional or statutory authority. Accordingly, the Court held that the President’s Order was an “instrument” within the meaning of section 8, and therefore, even after the repeal of the Ordinance, the Order continued to govern detentions made under rule 30 of the Ordinances.

The Court explained that an “instrument” is a document of a formal legal kind. It noted that the term can include an Act of Parliament and, as shown in the Conveyancing Act, 1881 (44 & 45 Vict. c.41), section 2(xiii), the word “instrument” embraces a deed, a will, an inclosure, an award and an Act of Parliament. The expression may also refer to a deed inter partes, a charter, a record or any other writing of a formal nature. However, the Court stressed that within the context of the General Clauses Act, the term must be understood to cover any formal legal writing such as an Order made under a statute, subordinate legislation, or any document of a formal character issued under constitutional or statutory authority. The Court further stated that it was convinced that the expression “instrument” in section 8 was intended to include the Order issued by the President in the exercise of his constitutional powers. Accordingly, the President’s Order, even after the repeal of the Ordinance referred to, would continue to govern detentions made under rule 30 of the Ordinances. The Court therefore held that the argument that the petitioner’s detention, originally made under the rule of the Ordinance, would not be deemed to have continued under the Act (LI of 1962) had no merit. Likewise, the contention that the same Order should have been re‑issued by the President after the enactment of the Act was also rejected as having no substance, for such a step would have been an unnecessary duplication of constitutional machinery. The Court explained that the legal fiction created by section 8 was meant to avoid this superfluous duplication. A proper construction of section 48 of the Act, which had replaced the Ordinances, read in the light of section 8 of the General Clauses Act left no doubt that the detention order against the petitioner was intended to remain effective even after the Ordinances were repealed and incorporated into the Act (LI of 1962). Consequently, the President’s Order was held to have the effect of suspending the petitioner’s right to move the Court for a writ of habeas corpus under Article 32 of the Constitution. Once the petitioner was temporarily deprived of that right, the Court observed that he could not raise any question regarding the validity of the Ordinances or the Rules and Orders made thereunder. In the result, the Court held the application to be non‑maintainable and dismissed the petition.