Union of India Vs. Bhanudas Krishna Gawde & Ors [1977] INSC 29 (25 January 1977)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 1027 1977 SCR (2) 719 1977 SCC (1) 834
ACT:
Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order 1974,--Validity of--High Court--If could examine the vires of the Act--If could entertain a petition under Art.
226 of the Constitution during Emergency.
HEADNOTE:
The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 provides that security prisoners shall not be allowed to supplement their diet even at their own expense, restricts the security prisoner from receiving funds from relatives and friends; restricts the number of meetings with relatives and friends and medical attention is allowed only through the Medical Officer of the prison in the same way as a convicted criminal and so on.
Writ Petitions filed by the detenus under Arts. 226, and 227 of the Constitution, two High Courts .have struck down the Order as ultra vires.
On appeal it was contended by the State that the right of a person to move. Any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and 22 of the Constitution having been suspended by the Presidential Orders of June 27, 1975 and January 8, 1976 issued under Art. 359(1) for the period during which the Proclamation of Emergency was in force, no person had locus Mandi to move an application under Art. 226 for the 'issue of a writ to enforce any right to personal liberty.
Allowing the appeals, (per Ray, C.J. and Jaswant Singh, J.)
HELD: The Writ Petitions were not maintainable and the High Courts were clearly in error in passing the impugned directions which were not warranted by any relevant law including the law relating to preventive detention. [732 D]
1. It is well settled by the decisions of this Court that if a person was deprived of his personal liberty not under the 'Defence of India Act, 1962 or any rule or order made there under but in contravention thereof, his locus standi to move any court for the enforcement of the rights conferred by Arts. 21 and 22 was not barred. On the other hand since the Presidential Orders dated June 27, 1975 and January 8, 1976 were not circumscribed by any limitation, their applicability was not made dependent upon the fulfillment of any conditions precedent. They imposed a total or blanket ban on the enforcement of the fundamental rights conferred by Arts. 19, 21 and 22. There is therefore, no room for doubt that these Presidential Orders unconditionally suspended the enforceability of the right conferred upon any person, including a foreigner, to move any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and 22 of the Constitution. [742 E, G-H] Additional District Magistrate, Jabalpur v. Shiva Kant Shukla [1976] 2 S.C.C. 521--A.I.R. 1976 S.C. 1207, Makhan Singh v. State of Punjab [1964] 4 S.C.R. 797--A.I.R. 1964 S.C. 381, State of Maharashtra v. Prabhakar Pandurang Sanzgiri [1966] 1 S.C.R. 702--A.I.R. 1966 S.C. 424, Dr. Ram Manohar Lohia v. State of Bihar [1966] 1 S.C.R. 709--A.LR.
1966 S.C. 740, A.K. Gopalan v. The State of Madras [1950] S.C.R. 88--A.I.R. 1950 S.C. 27 and Kharak Singh v. State of U.P. [1964] 1 S.C.R. 332--A.I.R. 1963 S.C. 1295, followed, 720
2. When a person has no locus standi to move any Court to challenge his order of detention, the High Court could not issue directions disregarding the provisions of the Act, which is a self-contained code, and particularly ss. 5 and 12(6) which are mandatory. [745 F-H] Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730, followed.
3. As Articles 19, 21 and 22 of the Constitution have been suspended during the operation of the Proclamation of Emergency, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and the orders made or passed there under were not open to challenge on the ground of their being inconsistent with or repugnant to Arts. 14, 19, 21 and 22 of the Constitution in view of the Presidential Orders, dated June 27, 1975 and January 8, 1976. [742 G-H] In the instant case the detenus covertly sought to enforce the vary rights which were suspended. It was not open to the High Courts to strike down the impugned clauses of the Maharashtra Conditions of Detention Order 1974.
4. The avowed object of the Act, as mainrest from its preamble, being the conservation and augmentation of foreign exchange and the prevention of smuggling activities secretly organised and carried on, it is essential that contact 0f the detenus with the outside world should be reduced to the minimum. It is for the State Governments who are in full possession of all material facts and not for the Courts who have neither the necessary knowledge of the facts nor the.
legal competence, to regulate conditions of detention Of persons, including their maintenance, interviews or communications with others. [746 A-C]
5. When a person is detailed, he can exercise only such privileges as are conferred on him by the order of detention or by the rules governing his detention.
State of Maharashtra v. Prabhakar Pandurang Sanzgiri [1966] I SCR 702AIR 1966 S.C. 424 referred to.
6. The mere fact that a detenu is confined in a prison for the sake of administrative convenience does not entitle him to be treated as a civil prisoner or to be governed by the provisions of the Prisons Act. The view of the High Courts to the contrary cannot be sustained. [746 D-E] Maqbool Hussatn v. The State of Bombay [1953] S.C.R. 730, followed.
7. The contention that the Presidential Orders did not bar the Court from examining the vires of the detention orders because what was sought to be enforced was not a right of personal liberty but a redress against unreasonableness of the order was misconceived. The Presidential Orders imposed a blanket ban on every judicial enquiry into the validity of an order depriving a person of his personal liberty irrespective of whether it stems from the initial order directing his detention or from an order laying down the conditions in his detention. [743 A-E] Additional District Magistrate, .Jabalpur v. Shiva Kant Shukla [1976] 2 S.C.C. 521--A.I.R. 1976 S.C. 1207 followed.
(Per Beg. J.) Concurring.
721 The High Courts, acting under Art. 226 have not been given the power to interfere in any matter involving the assertion or enforcement of a right to personal freedom by the detenus during an Emergency, when exercise of such power by the High Court’s is suspended. In times of Emergency the remedy for all the grievances of the detenus lies with the executive and administrative authorities of the State. [754 B-C]
1. Shukla's case held that 'it was not the fundamental rights which were suspended by the Presidential Order under Art. 359 but the right to move any Court for the enforcement of such right conferred by Part III as may be mentioned in the Order which is suspended for the duration of the Emergency. This mean that it is the 'jurisdiction of Courts, to the extent to which a petitioner seeks to enforce the fundamental rights mentioned in the Presidential Order, which is suspended. [749 G-H] Additional District Magistrate, Jabalpur v. Shivakant Shukla AIR 1976 SC 1283, applied.
A.K. Gopalan v. State of Madras, [1950] SCR 88, Kharak Singh v. State of U.P., [1964] 1 SCR 332, 1. C. Golakanath v. State of Punjab [1967] 2 SCR 762.
His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1 and Haradhan Saha v. The State of West Bengal & Ors., [1975] (1) SCR 778--AIR 1974 SCR 154 referred to.
2. The term "any other purpose" in Art. 226 means purposes similar to those for which one of the specified writs would issue subject to certain exceptions The writ of habeas corpus is wider in scope than the enforcement of fundamental rights which are available against the State only and its officers and agents. But so far as mere directions or orders for any other purpose are concerned, the jurisdiction of High Courts does not extend to making orders against private individuals. On the other hand, if an officer is duly empowered and has passed a detention order, that order is not capable of being questioned under Art. 226. All enquiry into the conditions of exercise of such Power is barred under the constitutional provisions during the emergency.
[750 D-E, H, 751 A, C-D]
3. In the instant case the remedy sought was clearly covered by the Presidential inhibition which operates against the High Courts. The claims made by the detenus were not matters which the High Court could consider in petition under Art. 226 of the Constitution. [751 E-F]
4. If the object of a proceeding is to enforce the fundamental right, to personal freedom, a High Court's jurisdiction under Art. 226 is barred during an Emergency even if it involved adjudication on the question of vires of a rule made under enactments authorising preventive detention. It is impossible to invalidate a rule either intended for or used for regulating the conditions of detention of a person detained under one of the Acts authorising preventive detention on the ground that the rule could only be used for persons in punitive detention. The attack on the validity of such a rule cannot succeed on the ground that the object of the rule should be shown to be preventive and not punitive. [754 E-F]
5. Shukla's case indicates that Arts. 19 and 21 embrace every aspect of an alleged infringement of the right of personal freedom by a State authority or officer purporting to act under a law. Even if the action violates, a protection conferred by Art. 21 upon citizens as well as noncitizens in ordinary times, the result of the suspension, of the protection given by Art. 21 must necessarily be that the protection cannot be enforced during an Emergency. If that be the effect of the Presidential declaration under Art.
359, the Court cannot go behind this declaration of law and the express letter of the law as embodied in the Constitution and enforce what may be covered by the right to personal freedom in ordinary times whether it parades under the guise of natural law or statutory law or constitutional law.
[755 F-H] 722
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 310 & 363 of 1976.
(From the Judgments and Orders dated the 1st September, 1975 of the Bombay High Court in Criminal Appln. No. 20/75) and Criminal Appeals Nos.: 348-349, 350, 195-201, 170-176, & Crl. As. Nos. 181-182 of 1976.
(Appeals by Special Leave Petitions from the Judgments and Orders dated the 14th/18th July, 1975, 9th July, 1975, 3rd April, 1976, 13th March, 1976, and 19th March, 1975, of the Bombay High Court in Criminal Appln. Nos. 794, 784/75, 833-839/76 and 614620/76 and 385-386/76 respectively and Criminal Appeal No. 397 of 1976.
(Appeals by Special Leave from the Judgments and Orders dated the 23rd March, 1976 and 6th April, 1976 of the Karnataka High Court in Writ Petitions Nos. 1454 and 2096/76 respectively) and Criminal Appeal No. 397 of 1976.
(From the Judgment and Order dated the 3rd September, 1975 of the Bombay High Court in Criminal Application No. 792/75) and CIVIL APPELLATE JURISDICTION: Civil Appeal No. 573 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 26th March, 1976 of the Bombay High Court in Criminal Appln. No. 31 of 1976) and Special Leave Petitions (Civil) Nos. 2443-2444, 2864, 3061 of 1976.
(From the Judgments & orders dated 8-4-76, 7-4-76, 12-4-76 & 8-4-76 of the Karnataka High Court in W.P. Nos. 2918/76, 6693/75, 1977, 2012 & 1295/76) and Dy. Nos. 3002 & 3003 0f 1976.
(From the Judgments and Orders dated the 8-4-1976 of the Karnataka High Court in Writ Petitions Nos. 2355 and 1968 of 1976 respectively) and Civil Appeals Nos. 1365-1367 of 1976.
(From the Judgment and Order dated the 23-3-1976 of the Karnataka High Court in Writ Petitions Nos. 2293, 2477 and 2503/76 respectively) and 723 Civil Appeal No. 434 of 1976.
(From the Judgment and Order dated the 1-4-1976 of the Karnataka High Court in IA No. IV in Writ Petition No. 4177 of 1970).
Narayan Nettar for the appellants in Crl. A. 210 and CAs Nos. 1365-1367/76 and Crl. A. 192 and for Petitioners in SLPs (Civil) Nos. 2443, 2444, 2864, 2865 and 3061/76 and R. 3 in CA 434/76.
V.P. Raman, Addl. Sol. Genl. (In Crl. A 310, 348, 397, 195 and 181/76), M/s. R.N. Sachthey and M.N. Shroff with him for the Appellant in Crl. A. 310, 348, 397, 349, 350, 363, 170-176, 181,182 add 195-201 and C.A. 573/76 and 434/76 and for R. 3 in Crl. A. 310 and 348 and RR 2 and 4 in Crl. A. 350/76.
Jail Petitioners for the Petitioners in Petn. Under Dy. No. 3002 3003/76.
H.M. Seervai (In Crl. A. Nos. 310, 340, 349, 363 and CA 573/ 76), Ashok H. Desai, A.J. Rane. (In CA 573/76), L R. Gagrat and B.R. Agarwala for RR. 1 and 2 in Crl. A. 310, 363 and 397 and R. 1 in Crl. As. 348-349 and RR in CA 573/76.
A.K. Sen, R.H. Dhebar and B.V. Desai for R. 1 in Crl. A. No. 350/76.
V.M. Tarkunde, Ashok H. Desai and V.N. Ganpule for RR in Crl. A. 170 to 176, 181, 182, 195-201/76.
H.M. Seervai, Dr. N. M. Ghatate, S. Balakrishnan, S. S. Khanduja, (Miss) Rani Jethamalani and Altar Ahmed for R. 1 in CA 434/76.
The Judgment of A.N. Ray C.J. and Jaswant Singh, J. was delivered by Jaswant Singh J., Beg, J. gave a separate opinion.
JASWANT SINGH J. These appeals, some of which have been preferred by certificates granted under Articles 133 and 134(1)(e) of the Constitution and Others by Special leave granted by this Court under Article 136 of the Constitution, and which are directed against various final and interim judgments and orders of the High Courts of Bombay and Karnataka passed in writ petitions filed under Articles 226 and 227 of the Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as 'the Act') complaining of certain constraints imposed on them under orders made under section 5 of the Act and claiming facilities in excess of those provided in the said orders, shall be disposed 0f by this judgment. A gist of the orders appealed against 12--112SCI/77.
724 and particulars of the petitions in which they have been passed given in the sub-joined table for facility of reference :--FIRST BATCH OF APPEALS 1.Sr. No. 2.No. of appeal
3. Date of the order appealed against
4. No. of the application in which the order appealed against has been passed
5. Name of the High Court which passed the order
6. Name of the detenu in whose favour or against whom the order against has been passed.
7. substance of the order appealed against Sr.No.-1
2. Crl. A.No. 310/1976
3. 1-9-1975
4. Crl. Application No. 20/1975
5. Bombay
6. Krishna Budha Gawda
7. Clauses 9(iii) 10, 12(i)and (xi), 19, 20, 21, 23, 24 and 31 of the Conservation of Foreign Exchange and Prevention of Smugling Activities (Maharashtra Conditions of Detention) Order, 1974 struck down and directions issued requiring the detaining authority to keep the detenu under detention as a 'civil prisoner' within the terms of and in all respects in conformity with the provisions of the Prisons Act, 1894 and further directing the detaining authority to,permit the detenu to maintain himself by receiving such funds not exceeding the sum of Rs. 200/per month us he may desire to have lot that purpose from any of his relatives or friends, and to purchase or receive from private sources at proper hours food.
clothing, bedding, and other necessaries, including toilet requisites, toilet soap.
cigarettes and tobacco, subject to examination gild to such rules, if any, as may be approved by the Inspector General , as also to permit the detenu to meet persons with whom he may desire to communicate at proper times anti tinder proper restrictions.
Sr. No. 2.
2. Crl. A. No.
3. -do
4. -do
5. -do
6. -do
7. -doSr.No. 3
2. Crl. A. No. 397/1976
3. 3-9-1975
4. Crl. Application No. 792/1975
5. Bombay ram Kewalji
6. Ghamandi Gowani
7. [Nil] SECOND BATCH OF APPEALS Sr. No.1.
2. Crl. A. No.348/1976
3. Interim order dated 14-7-1975
4. Crl. Application No. 794/1975
5. Bombay
6. Ramlal Narang
7. Directions issued to the detaining authority to permit the detenu (1) to have his food from outside at his own expense, subject to routine check: (2) to have one interview with his legal advisers for two hours in the presences 725 of a Customs Officer, but not within Iris hearing; (3) to have one interview per month with ally Of tile Family members, which should be in accordance with and subject to subclauses (iii), (vi), (vii) and (ix)of clause 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974.
2. Crl. A. No 348/1976
3. Interim order dated 14-7-1975
4. Crl. Application No. 794/1975
5. Bombay
6. Yusuf Abdulla Patel
7. Directions issued to the detaining authority (1) to permit the detenu to have his food from outside at his own expense subject to routine check,(2) to have the detenu examined at least once a week by Doctors at St. George's Hospital and to permit the detenu's doctor being present at such examination.
(3) to permit the detenu to take specially prescribed medicines at his own cost.(4) not to remove the detenu to another jail from the Arthur Road Prison, Bombay, without giving at least 24 hours notice in writing (excluding Sundays and other holidays) to his Attorneys, (5) to permit the detenu to have one interview with his legal advisers for two hours in the presence of a Customs Officer but not within his hearing and (6) to permit the detenu to have interview with relatives as per clause 12(ii) of Maharashtra Conditions of Detention Order, 1974.
THIRD BATCH OF APPEALS Sr.No .1
2. Crl. As. Nos. 195-201/1976
3. 3-4-1976
4. Crl. Applications 833-839/1976
5. Bombay
6. Ratan Singh Gokaldas Rajda & others
7. Directions issued to the detaining authority to have the detenus taken under custody to the site of the meeting of the Bombay Municipal Corporation and enable them to exercise their votes at the mayoral election.if and when it takes place.
Sr.No. 2
2. Crl. As. Nos. 170-176/1976
3. 13-3-1975
4. Crl. Applications 614-620/1975
5. Bombay
6. Smt. Ahilya Pandurang Rangankar and others
7. While rejecting the application for release on parole directions issued the detaining in authority to have the detenus taken under custody to vote at the election of statutory Committees to be held on 15-3-1976 at 3 P.M.
at the Bombay Municipal Corporation Bombay.
726 Sr.No. 3
2. Crl. As. Nos. 181-182/1976
3. 19-3-1976
4. Crl. Applications Nos. 385-386/1976
5. Bombay
6. Ganesh Prabhakar Pradhan and others
7. Directions issued to the detaining authority to have the the detenus taken under custody to the Maharashtra Legislative Council Hall for the limited purpose of enabling them to exercise their right to the statutory Committess on 30-3-1976.
Sr.No. 4
2. Crl As. Nos. 1365-67/1976
3. 23-3-1976
4. W. Ps. Nos. 2293, 2477, 2503/1976
5. Karnataka
6. C.R. satish and Others
7. Directions issued to the detaining authority to have the detenus taken not later than 11 A.M. on 24-3-1976 under police escort to the place where the election of the President of the Town Municipal Council, Chikmaglur was to be held and after they exercised their right to vote to have them brought back under police escort to the jails in which they were then detained.
Sr. No. 5
2. C.A. Nos. 434/1976
3. 1-4-1976
4. I.A. No. IV W.P. No. 4177/1976
5. Karnataka
6. L.K. Advani
7. Directions issued to the detaining authority to have the detenu taken under police escort to New Delhi so as to enable him to be in Rajya Sabha on 3-4-1976 before 10.45 A.M. and to allow him to take oath of affirmation and thereafter to take his seat in Rajya Sabha and to have him brought back under police escort to the Central Jail Banglore on 3-4-1976 or on 4-4-1976 whichever date is convenient to the detaining authority.
FOURTH BATCH OF APPEALS Sr. No. 1
2. Crl. A. No. 192/1976
3. 23-3-1976
4. W.P. Nos 1454/1973
5. Karnataka
6. Gurunath Kulkarni
7. Directions issued to the detaining authority (1) to have the detenu taken under police escort on or before 3-4-1976 to the shops in Bellary to enable them to purchase stationary required for the examination and to the college where detenu had 10 get the admission ticket to the examination. (2) to have the detenu taken on each day of the examination under police escort from the jail at Bellary to the Examination centre and to see that he reached such centre at least 20 minutes before the commencement of the examination and was brought back after the day's examination was over from such centre to the jail under police escort. Directions also issued to the jail authorities to ascertain well in advance the programme of the examination which the detenu had to take.
727 Sr. No. 2
2. Crl. A. No. 210/1976
3. 6-4-1976
4. W.P. No. 2096/1976
5. Karnataka 6.K.T. Shivanna
7. Directions issued to the detaining authority to release the detenu on parole on the afternoon of 10-4-1976. The detaining authority also directed to arrange to have the detenu either taken under police escort to his home at Novavirakare, Tiprut Talu, starting from Bangalore on the afternoon of 10-4-1976 and to have him brought back under police escort from his home to the Central Jail, Bangalore, starting from Honavinskere on the afternoon of 12-4-1976 OR release the detenu at the gate of the Central jail Bangalore on his executing a self bound for Rs. 6,000/undertaking to surrender himself to the jail authorities on 12-4-1976 not later than 6 P.M. and not take part in political activities or other activities detrimental to the security of the State during the period he remained on parole. The police, however given the liberty to keep a watch around the detenu's house and to follow his movements outside his house during the period he continued on parole.
Sr.No. 3
2. S.L.P.(Civil) No. 2443/1976
3. 8-4-1976
4. W.P. No.2918/1972
5. Karnataka
6. K.A.Nagaraj
7. Directions issued to the detaining authority (1) to release the detenu on parole, (2) to have the detenu taken on the evening of 9-4-1976 under police escort to his houses and brought back to the Central Jail, Bangalore. under police escort on the evening of 10-4-1976; and (3) again have the detenu taken on the evening 01 14-4-1976 under police escort to his house and brought back under police escort to the Central Jail, Bangalore, on the evening of 15-4-1976. The police, however, given tile liberty to keep a watch around the house of the detenu and to follow his movements during the period he remained on parole.
Sr. No. 4
2. S.L.P.(Civil) No. 2444/1976
3. 8-4-1976
4. W.P. No.6693/1975
5. Karnataka
6. P.B.Satyanarayana Rao
7. Directions issued to the detaining authority to release the detenu on parole on 14-4-1976 and to have him taken under police escort to his home and brought back under police escort to the jail On the afternoon of 16-4-1976. The police, however, given the liberty to keep a watch around the house of the detenu and to watch his movement outside his house during his release on parole.
728 Sr. No. 5
2. S.L.P.(Civil) No. 2864/1976
3. 7-4-1976
4. W.P. No. 1977/1976
5. Karnataka
6. M.Sanjeev Gatti
7. Directions issued to the detaining authority either (i) to arrange the detenu taken under police escort to his native place. Bangalore, starting from Bangalore on 8-4-1976 and brought back under police escort to the Central Jail Bangalore on 14-4-1976.
and (ii) to release the detenu at the gate of the Central Jail. Bangalore. on the morning of 8-4-1976 his executing a sellbond of Rs. 5,000/undertaking to surrender himself to the jail authorities not later than 5 P.M. on 15-4-1976 and not to take part in any political activity or other activity detrimental to the security of the State.
The police, however, given the liberty to keep a watch around the house houses in which the detenu stayed and to follow his movements outside the house or houses during the period he remained on parole.
Sr.No. 6
2. S.L.P. (Civil) No. 2865/1976
3. 8-4-1976
4. W.P. No. 2012/1976
5. Karnataka
6. V.S. Acharya
7. Directions issued to the detaining authority either to arrange to have the detenu taken under police escort from Central Jail. Bangalore, to Udupi starting from Bangalore on the morning of 13-4-1976 and to have him brought back under police escort from Udupi starting there from on the morning of 21-4-1976 or release the detenu at the gate of the Central Jail, Bangalore, on his executing a self-bond lot Rs. 5,000/undertaking not to take part in any political activity or in any activity detrimental to the security of the State during the period he remained on parole as to surrender himself to the Jail authorities not later than 6 P.M. on 21-4-1976. The police however, given the liberty to keep a watch over the detenu and to follow him movements during the period he remained on parole.
Sr.No. 7
2. S.L.P. (Civil) No. 3061/1976
3. 8-4-1976
4. W.P. No. 1295/1976 5.Karnataka
6. C.V.Shankar Rao Jadhav
7. Directions issued to the detaining authority either (1) to arrange to have the detenu taken too his home at Nandya under police escort starting from Bangalore on the evening of 10-4-1976 and to have him brought back under police escort to the Central Jail Bengal starting from Nandya on the morning 13-4-1977.
729 or (2) to release him at the gate of the Central Jail, Bangalore on the evening of 10-4-1976 on his executing a self-bond for Rs. 5,000/undertaking to surrender himself to the Jail authorities not later than 4 P.M. on 12-4-1976 and not to take part in any political activity or other activity detrimental to the security of the State during the period of his release on parole.
The police, however, given the liberty to keep a watch around the detenu's house and to follow his movements outside his house during the period of his release on parole.
FIFTH BATCH OF APPEALS Sr.No. 1
2. Dy. No. 3002/1976
3. 8-4-1976
4. W.P. No. 2355/1976
5. Karnataka
6. D.J. Shivaram
7. Prayer of the detenu allow him to be released on parole to enable him to take the final LL.B. examination rejected in view of the orders made by this Court i.e. the Supreme Court in High Court W.P. No. 1454/1976 Sr. No. 2.
2. Dy. No.3003/1976
3. 8-4-1976
4. W.P. No. 1968/1976
5. Karnataka
6. Hanumant Gururao Inamdar
7. Prayer of the detenu to allow him to be released on parole to enable him to take the Second Year LL.B. examination rejected in view of the orders made by this Court on in High Court W.P. No. 1454/1976.
SIXTH BATCH OF APPEALS Sr. No.1
2. C.A. No. 349/1976
3. 18-7-1975
4. Crl. Application No.794/1975
5. Bombay
6. Ramlal Narang
7. Directions issued to the detaining authority not to remove the detenu till further order to another jail outside the State without giving at least 3 hours notice in writing (excluding Sunday and holidays to the detenu attorneys.
Sr. No. 2.
2. C.A. No. 573/1976
3. 20-3-1976
4. Crl. Application No. 31/1976
5. Bombay
6. Prabhudas Tribhovandas
7. Directions issued to the detaining authority to detain the detenu in such prison where the detenu would have the benefit of the Company of other women detenus as also other facilities under the rules.
Clauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 & 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as "the Maharashtra Conditions of Detention Order, 1974") which have been struck down by the High Court of Bombay read as under :--"9. ... .... ..... ...... ........
730 (iii) Security prisoners shall not be allowed to supplement their diet even at their own expense. Any security prisoner who wishes to supplement his diet on medical grounds. may apply to the Commissioner or the Superintendent, as the case may be. The Commissioner or the Superintendent shah get him examined by a Medical Officer attached to the place of detention who may order such modification of, or addition to, his diet, as he may consider necessary on medical grounds.
10. Supply of funds :--(i) A security prisoner may, with the previous sanction of the detaining authority, receive from a specified relative or friend at intervals of not less than a month, funds not exceeding Rs. 30/per month and may spend these funds or a similar sum from his own private funds on such objects and in such manner as may be permissible under the rules, in case in which for want of funds any security prisoners are compelled to do without small amenities which their fellow prisoners enjoy, such amenities may, if considered absolutely necessary by the Commissioner or the Superintendent be supplied to them at Government costs.
(ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of the security prisoners concerned.
(iii) Amounts in excess of those prescribed in subclause (i) may be received by the Commissioner or the Superintendent on behalf of security prisoners, but they shall not be spent in any month beyond the limits laid down in the said sub-clause.
12. .. .. .. .. ..
(ii) The number of interviews which a security prisoner may be permitted to have shall not ordinarily exceed one per month.
(xi) In addition to the interviews permissible under the preceding provisions of this clause, a security prisoner may with the permission of the detaining authority, be granted not more than two special interviews, for the settlement of his business or professional affairs, such interviews shall ordinarily take place within a period not exceeding two months from the date of detention of the security prisoner. concerned and shall be conducted in accordance with the provisions of this clause as regards place, duration and conditions of the interview, and the proceedings shall be strictly confined to the objects for which the interview is granted.
19. Medical attendance :--(i) The Superintendent of the Hospital or the Civil Surgeon, as the case may be, shall depute a medical officer to visit each security prisoner detained 731 in a police lock-up and report of his physical condition. The said Medical Officer shall visit the prisoner at least once a week and more often if the Superintendent of the Hospital or the Civil Surgeon or the Commissioner as the ease may be thinks fit, and submit the report on his condition to the Commissioner or the detaining authority, after the first day of each month and at any other time he considers necessary.
(ii) Security prisoner detained in a jail or sub-jail shall in the event of illness, be treated in the same way as convicted criminal prisoner or treated under the rules made under the Prisons Act, 1894.
20. Toilet :--(i) Every security prisoner shall be supplied with near or babul stick at Government expense.
(ii) Every security prisoner shall be supplied with one cake of jail made toilet soap per month for bathing at Government expense. The weight of such cake shall be 113 grams approximately and if jail made soap is not available in any medium quality, toilet soap manufactured in India: and available locally shall be supplied.
21. Service of barbers etc. :--(i) A security prisoner shall not be permitted to have shaving equipment of his own.
(ii) Every security prisoner shall be allowed to have the services of the jail barber once a week.
23. Smoking and tobacco:--Except cigarettes or bidies and chewing tobacco, which are available at the jail canteen, no other facilities to smoke or chew tobacco shall be permitted.
24. Games :--Security prisoners shall not be pertained to play indoor games like cards or to play chess, draughts and carrom.
31. Power to withhold any concessions or facilities: The State Government may, by general or special order, withhold any of the concessions or facilities provided by or under any of the provisions of this order in respect of any security prisoner or class of security prisoner, and for such period or periods, as the State Government may, from time to time specify.
Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the detenus to receive or purchase toilet requisites, toilet soap and to consult private doctors in case of genuine necessity if an application is made to it in that behalf, submitted that the right of any person to 732 move any court for the enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of the Constitution having been suspended by virtue of the Presidential Orders dated June 27, 1975 and January 8. 1976 issued under clause (1) of Article 359 of the Constitution (which are absolute in terms) for the period during which , the proclamation of emergency made on June 25, 1975 under clause (1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Article 226 or Article 227 of the Constitution for issue of a writ, order or direction to enforce any right to personal liberty. He has further urged that since it is for the appropriate Government to specify the place of a detenu's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others with a view to prevent his contact with the outside world and sincewhat was sought to be enforced in the instant cases by means of the applications filed by or on behalf of the detenus under Article 226 and 227 of the Constitution in the aforesaid High Courts was nothing but various facts of personal liberty under Articles 19, 21 and 22 of the Constitution, the applications were not maintainable and the High Courts were not competent to deal with them and to either strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 or to issue the aforesaid directions to the detaining authorities.
Mr. Seervai Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized:
(1) that preventive detention does not stand on the samefooting as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;
(2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in, which conditions of detention fall for consideration;
(3) that the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency and the exercise of power under section 5 of the Act must have a reasonable nexus with the purpose for which the power is conferred;
(4) that if according to the majority judgment in Additional District Magistrate, Jabalpur v. Shiva Kant Shukla(1) even habeas corpus could issue in cases where the order is not duly authenticated then the conditions of detention can certainly be scrutinized and relief can be granted if those conditions are found to be illegal or ultra vires;
(1) [1976] 2 S.C.C 521= A.I.R. 1976 S,C.
1207.=[1976] Supp. S,C.R. 172.
733 (5) that the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974, being ultra vires and violative of the principles of reasonableness and legality have rightly have been struck down by the High Court of Bombay:
(6) that a curtain cannot be drawn round the detenu ,red while he can be cut off from undesirable contacts, he cannot be cut off from unobjectionable contacts;
(7) that if the place of detention mentioned in a detention order is a prison, then the detenu would be governed by the Prisons Act but not if the detenu is lodged elsewhere;
(8) that the detenus' grievances are not 'echoes' of Article of the Constitution but are the echoes of the 'totality' law;
(9) that it is not right to say that what is not contained in Article 19 of the Constitution is contained in Article 21 of the Constitution as this submission ignores Articles 15, 25 and 26 of the Constitution which are applicable even to non-citizens.
The learned Additional Solicitor General has, in his rejoinder, contended that while total release is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27th June, 1975 and January 8, 1976 issued under Article 359 (1) of the Constitution which are unconditional even conditions of detention cannot be enforced by moving a court during the period of emergency and that the contention based upon the principles of legality and reasonables and doctrine of ultra vires is misconceived. The Additional Solicitor General has further submitted that legality has to be understood as meaning the authority of law and it so understood, a person detained in accordance with the conditions framed under section 5 of the Act cannot complain that the conditions are illegal or ultra vires, broader challenges based on fundamental rights not being available; that the principle of reasonableness and the doctrine of ultra vires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague and indeterminate philosophical theories like the totality of law; that as the line of demarcation between preventive and punitive detention which is easily perceivable at the stage of detention becomes progressively elusive and hazy when one comes to conditions of detention. there is little scope for generalisation; that curtain has to be drawn round a detenu to ensure effectiveness of detention which cannot be sacrificed in the interest of security of the State; that the observations made by the majority in Shivakant Shukla's case (supra) regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious eases where the Executive itself could not and would not seek to defend a detention order and can be of no assistance in the present cases where the detenus seek to 734 enforce a right to do something or to get something which is not con t:erred on and given to them by law; that any right to personal liberty or any facet or aspect thereof has to be found in some constitutional provision to be enforced in normal times and ex-hypothesi to become unenforceable during an emergency and reference to Articles 15, 25 and 26 of the Constitution completely ignores the fact that these rights postulate a free citizen and cannot be enforced independently of Article 21 or Article 19 of the Constitution and in any case, the rights claimed in the present cases have no relation to those Articles.
Without prejudice to the aforementioned contentions advanced by him the learned Additional Solicitor General has further submitted that it is only where there are specific provisions in the rules framed trader section 5 of the' Act that those provisions being conditions of detention can be enforced when still available to an individual detenu that the provisions of Maharashtra Conditions of Detention Order, 1974 have to be examined and scrutinized to see if the facilities claimed by the detenus are excluded by implication, e.g. where a provision for a particular number of interviews is made, it necessarily implies a prohibition against having more interviews; that the question whether a particular act which is not specifically prohibited should be permitted or not has to be decided by keeping in view the effectiveness of detention; that allowing a detenu to go and vote at a corporate election or to take part in legislative proceedings is destructive of the purpose of detention and in any event approach must be made to the Executive to exercise its rights of parole or relaxation which is implicit in sections 12 and 5 of the Act as for instance if the release is necessitated by exigencies like performance of obsequieal ceremonies or sharadh of a kith and kin, but an order directing the detenu to be taken under police guard to the place where obsequies of a dead relation are to be performed cannot be made by a court as it tantamounts to onforcing his personal liberty; that while Iramane considerations are generally borne in mind by the authorities having the custody of the detenus and appropriate Government, they cannot furnish reliable basis for judicial relief; that the aforesaid directions of the Bombay High Court equating detenus with 'civil prisoners' amenable to the Prisons Act, 1894, does not only amount to a substitution or re-enactment of section 5 of the Act i.e. of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 but is also opposed to the definition of the 'prisoner' as contained in the Bombay Jail Manual which has not been amended so as to include persons directed to be detained under any Central or other Act providing for detention; that the mere fact that a person is detained for purposes of administrative convenience in a jail does not mean that he is a civil prisoner or that the Prisons Act applies to him;
and that the necessity of having provisions in the conditions of detention orders enabling a detenu to consult private doctors in the presence of the official doctors in case of genuine necessity or to supplement his diet on medical grounds or to indulge in harmless pastimes like chess or carrom or to appear in examinations are matters for which the appropriate Government should be approached.
735 We have given our anxious consideration to the submission made by counsel for the parties. In our judgment, the vital question of fundamental importance that requires to be determined at the threshold in the instant cases is whether in view of the orders dated June 27, 1975 and January 8, 1976 issued by the President under clause (1) Article 359 of the Constitution, the aforesaid petitions under Articles 226 and 227 of the Constitution were maintainable.
For a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presidential Orders dated November 3, 1962, December 3, 1971, November 16, 1974, June 25, 1975, June 27, 1975 and January 8, 1976. The aforesaid Articles of the Constitution are in these terms :-"Article 352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation make a declaration to that effect.
(2) A Proclamation issued under clause (1)-(a) may be revoked by subsequent Proclamation;
(b) shall be laid before each House of Parliament;
(c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament;
Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstruction unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of People.
(3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.
736 ** (4) The power conferred on the President by this article shall include the power to issue different proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause (1), and such Proclamation is in operation.
(5) Notwithstanding anything in this Constitution, (a) the satisfaction of the President mentioned in clause (1) and clause (3) shall be final and conclusive and shall not be questioned in any court on any ground;
(b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of-(i) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclamation." "Article 353. While a Proclamation of Emergency is in operation then(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;
(b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the Conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding' that it is one which is not enumerated in the Union List." "Article 358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to. the extent of the 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." ** Inserted retrospectively by section 5 of the Constitution (Thirty-eighth Amendment) Act, 1975.
737 "Article 359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the fight 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.
**(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State us defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament." It is hardly necessary to emphasize that the provisions of the Articles reproduced above arc designed to arm the State with special powers to meet extraordinary situations created in times of grave national emergencies due to war, external aggression and internal disturbance when the security of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp. 717, 718:-"It has always been recognized that times of grave national emergency demand the grant of special powers to the Executive. At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament." It is, however, necessary to state that there is an appreciable difference between Articles 358 and 359(1) of the Constitution. Whereas simultaneously with the declaration of emergency under Article 352, Article 358 by its own force removes the restrictions on the power of the Legislature to make laws inconsistent with Article 19 of the Constitution as also on the power of the Executive to take ** Inserted retrospectively by section 7 of the Constitution (Thirty-eighth Amendment) Act, 1975.
738 actions which may be repugnant to Article 19 of the Constitution so long as the proclamation of emergency continues to operate but does not suspend any fundamental right which was available to a citizen under Article 19 of the Constitution prior to the promulgation of emergency, Article 359(1) empowers the President to suspend the right of an individual to move any court for enforcement of such of the rights conferred by Part III of the Constitution as may be specified by him (the President) in his order. In other words, while Article 358 proporio vigore suspends the fundamental rights guaranteed by Article 19 of the Constitution thus enabling the State during the period the proclamation of emergency is in operation to make laws in violation of Article 19 of the Constitution and to take Executive action under those laws despite the fact that those laws constitute an infringement of the rights conferred by Article 19, Article 359(1) of the Constitution does not suspend any fundamental right of its own force but authorises the President to deprive an individual of his right to approach any Court for enforcement of any or all of the rights conferred by Part III of the Constitution. In Mohd.Yaqub etc. v. The State of Jammu & Kashmir(1), a Constitution Bench of this Court consisting of seven Judges inter alia pointed out that there is a distinction between Articles 358 and 359(1) of the Constitution. Whereas Article 358 by its own force suspends the fundamental rights guaranteed by Article 19, Article 359(1) of the Constitution has the effect of suspending the enforcement of specified fundamental rights so. that these concept cannot be used to test the legality of an Executive action.
Reference in this connection may also usefully be made to a passage in Shivakant Shukla's case (supra) where my.
Lord the Chief Justice who headed the majority opinion while pointing out the difference between Articles 358 and 359 of the Constitution observed :-"The vital distinction between Article 358 and Article 359 is that Art. 358 suspends the rights only under Article 19 to the extent that the legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental fight. While a Proclamation of Emergency is in operation the Presidential Order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights, The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency.
Another important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359(1) does not, Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only. (1) [1968] 2 S.C.R. 227.
739 A person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non-compliance with valid laws or acts without the authority of law. It cannot be said that the scope of Article 359(1) is only to restrict the application of the Article to the Legislative field and not to the acts of the Executive. The reason is that any enforcement of the fundamental rights mentioned in the Presidential Order is barred and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount 'to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential Order.
The effect of the Presidential Order suspending the enforcement of fundamental right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right." Thus the foregoing discussion makes two things perfectly clear(1) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358 and (2) that it is not open to any one either to challenge the validity of any law or any Executive action on the ground of violation of a fundamental right specified in the Presidential Order promulgated under Article 359(1). of the Constitution. It would be apposite at this stage to mention that in England in Liversidge v. Anderson(1) and Greene v. Secretary of State for Home Affairs(2) and in India in Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura(3) and Makhan Singh v. State of Punjab(4) the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived. In the Liversidge's case (supra) the following memorable observations made by the House of Lords in the King v. Halliday, Ex parte zadig(5) were referred to and relied upon :"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment namely, national success in the war or escape from national plunder or enslavement. Liberty is itself the gift of the law and may by the law be forfeited or abridged." Having noticed the amplitude of the provisions incorporated in our Constitution by its rounding fathers in relation to the threat posed by three types of grave emergencies on the basis of the experience gained . in England and United States of America and their effect, let us now turn to the various Presidential Orders and notice their effect.
(1) [1942] A.C. 206.
(2) [1942] A.C. 284.
(3) [1964] 3 S.C.R. 442 = A.I.R. 1964 S.C. 173.
(4) [1964] 4 S.C.R. 797 = A.I.R. 1964 S.C. 381.
(5) [1917] A.C. 260.
13--112 SCI/77.
740 Presidential Order dated November 3, 1962 issued under clause (1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows :-"New Delhi, the 3rd November, 1962 G.S.R. 1464--In exercise of the powers Conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made there under." Be it noted that addition of Article 14 was made in the above Presidential Order of November 3, 1962 by the Presidential Order dated November 11, 1962 and the aforesaid emergency declared on October 26, 1962 was revoked vide Presidential Order dated January 10, 1968 issued under Article 352(2)(a) of the Constitution.
Proclamation of emergency issued by the President of India under Article 352(1) of the Constitution on December 3, 1971, consequent upon the Pakistani aggression reads as under :-"In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, V.V. Giri, President of India, by this.
Proclamation declare that a grave emergency exists whereby the security of India is threatened by .external aggression." Presidential Order dated November 16, 1974 issued under clause (1) of Article 359 of the Constitution is in these terms :-"In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that :-(a) the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1)(c) of the Maintenance of Internal Security Act, 1971 as amended by Ordinance II of 1974 for the enforcement of the rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution, and (b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said section 3(1)(e) shall remain suspended for a period of six months from the 741 date of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution the 3rd December, 1971, is in force, whichever period expires earlier.
(2) This order shall extend to the whole of the territory of India." On June 20, 1975, the President of India amended the above order by substituting "twelve months" for "six months" in the order.
Proclamation of Emergency issued by the President of India on June 25, 1975 is to the following effect :-"PROCLAMATION OF EMERGENCY.
In exercise of the powers conferred by clause (1 ) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threat ended by internal disturbances.
New Delhi Sd/F.A. Ahmed the 25th June, 1975 President." Presidential Order dated June 27, 1975 promulgated under clause (1) of Article 359 of the Constitution runs thus :-"In exercise of the power conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.
This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.
This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of 'Article 359 of the Constitution." On June 29, 1975, another. order was issued by the President whereby the words "except the State of Jammu and Kashmir" in the order dated June 27, 1975 were omitted. On September 25, 1975, another Presidential Order was issued as a result of which the last paragraph in the Presidential Order dated June 27, 1975 was omitted.
On January 8, 1976, the President issued yet another order under Article 359(1) of the Constitution declaring that the right to move 742 any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall remain suspended during the operation of the proclamations of emergency dated December 3, 1971 and June 25, 1975.
The difference between the Presidential Order dated June 27, 1975 which was supplemented by the Presidential Order dated January 8, 1976 and the earlier Presidential Orders barring the right of a person to move any court for enforcement of certain fundamental rights conferred by Part III of the Constitution may now be noticed. While the Presidential Order dated June 27, 1975, which, as already stated, was supplemented by the Presidential Order dated January 8, 1976 was absolute and unconditional in terms, the earlier Presidential Orders alluded to above were conditional a