When making an order of detention under this Act against any person including a foreigner after the companymencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall companysider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such companysideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and companymunicate a companyy of the declaration to the person companycerned Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is companyfirmed by the State Government, after such review, within the said period of fifteen days.
When those petitions came up for hearing, the Government raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas companypus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 of the Constitution only.
The above questions arise in criminal appeals Nos.
The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
On June 25, 1975 the President of India issued another proclamation of emergency and the same reads as under PROCLAMATION OF EMERGENCY In exercise of the powers companyferred 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 threatened by internal disturbance.
The right to move for enforcement of the right companyferred by that Article having been suspended by the Presidential Order dated June 27, 1975 the petitions, according to the Government, were liable to be dismissed at the threshold.
The facts giving rise to these appeals have been fully set out in the judgment of my Lord the Chief Justice and it is number necessary for me to reiterate them as numberhing turns on the facts.
This Order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.
The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352 2 a of the Constitution.
Indira Nehru Gandhi v. Shri Raj Narain to explain at some length.
This Order shall be in addition to and number in derogation of any Order made before the date of this Order under Clause 1 of Article 359 of the Constitution.
Article 14 was added to the Order of November 3, 1962 by the amendment dated November 11, 1962.
Various persons detained under Section 3 1 of the MIS A filed petitions in different High Courts for the issue of the writ of Habeas Corpus.
On the second question, some of the High Courts expressed the view that this was a matter which would be gone into while dealing with individual cases on their merits.
On June 27, 1975 the President issued an Order under Article 359 1 which reads as follows S.R. 361 E In exercise of powers companyferred 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 companyrt for the enforcement of the Richs companyferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any companyrt for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause 1 of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th of June, 1975 are both in force.
Being aggrieved by the orders dismissing their petitions, the detenus filed appeals in this Court which were heard by a Constitution Bench companysisting of 7 Judges.
26 of 1971, MISA , was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan.
On November 16, 1974 the President issued a Declaration under Article 359 1 suspending the right of persons detained under Section 3 1 c of the MISA to move for enforcement of the rights companyferred by Article 14, Article 21 and Clauses 4 , 5 , 6 and 7 of Article 22 of the Constitution On June 25, 1975 the President issued a Proclamation under Article 352 1 declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance.
Consequent on the Pakistani aggression, the President issued a Proclamation of Emergency on December 3, 1971 on the ground that the security of India was threatened by external aggression.
The judgment of the majority was delivered by Ganjendragadkar J. Subba Rao J. gave a dissenting judgment.
By an order dated December 5.
During the pendency of these appeals and while the hearing was in progress, the President issued an order dated January 8, 1976 under Article 359 1 declaring that the right to move any companyrt for the enforcement of the rights companyferred by Article 19 and the proceedings pending in any companyrt 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.
This difference in the view of the majority and the minority is number of numberconsequence as Section 491 has ceased to be on the Statute Book after April 1, 1974 when the new CrPC came into force.
None of the writ petitions out of which these appeals arise has in fact been finally disposed of on merits.
They challenged the legality and validity of the orders of their detention in all the cases.
But while the majority took the view that the petition under Section 491 of the Criminal Procedure Code was also barred, Subha Rao J. held that the petitioners right to ask for relief by filing an application under Section 491 was number affected by the Presidential Order.
The State raised a preliminary objection that the Presidential Order dated 27 June, 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any 01 the rights companyferred by Articles 14, 21 and 22 of the Constitution and the companytinuance of emergency during which by virtue of Article 358 all rights companyferred by Article 19 stand suspended are a bar at the threshold for the respondents to invoke the jurisdiction of the High Court under Article 226 of the Constitution and to ask for writs of habeas companypus.
There were differences of opinion amongst them, but for the purpose of the present appeals, it is number necessary to refer to those differences as they are number material.
Since in the view of these High Courts, the writ petitions filed by the detenus were maintainable, though on certain limited grounds of challenge, each of the writ petitions was directed to be set down for hearing on merits.
The Order shall extend to the whole of the territory of India.
1971 issued under Article 359 1 of the Constitution, the right of foreigners to move any companyrt for the enforcement of rights companyferred, by Articles 14, 21 and 22 was suspended.
The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also companysidered the interpretation and validity of Section 16A, Sub section 9 of the Maintenance of Internal Security Act, 1971 and while the Rajasthan High Court accepted the interpretation of that Sub section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the Sub section to be valid by reading it down so as number to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based.
Thereupon each of the aggrieved State Governments obtained special leave to appeal against the decision of the companycerned High Court and that is how the present appeals have companye before this Court.
The Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter.
Being aggrieved by the finding recorded by these Rich Courts on the preliminary point, the State Governments and the Government of India have filed these appeals, some under certificates granted by the High Courts and some by special leave granted by this Court.
These appeals have been filed against the orders of Madhya Pradesh High Court, Allahabad High Court, Karnataka High Court, Delhi High Court, Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under Article 226 for writs of habeas companypus on account of Presidential order dated June 27, 1975.
279 of 1975, 355 and 356 of 1975, 1845 49 of 1975, 380 of 1975, 1926 of 1975, 389 of 1975, 3 of 1976, 41 of 1976 and 46 of 1976.
Both the majority and the minority judgments agree that the Presidential Order would take away the right to move the Supreme Court under Article 32 and the High Court under Article 226 for the enforcement of the rights mentioned in the Order.
They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June, 1975.
The judgments are of the High Courts of Allahabad, Bombay Nag pur Bench , Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
The Act of 1962 expired on July 10, 1968.
In September 1974 the MISA was amended by Ordinance 11 of 1974 to include Sub section c in Section 3 1 , by which be right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947.
Barring the writ petitions before the Rajasthan High Court and the Nagpur Bench of the Bombay High Court, where one additional question has been companysidered, the only question that has been decided in these writ petitions is as to their maintainability in view of the Presidential Order dated 27th June, 1975 issued under Article 359, Clause 1 of the Constitution.
The respondents filed applications in different High Courts for the issue of writ of habeas companypus.
Nagpur Bench Allahabad Madras Rajasthan Madhya Pradesh Andhra Pradesh Punjab and Haryana.
Some of these High Courts have further held that the detenus can attack the order of detention on the ground that it is malafide, as for example, by showing that the detaining authority did number apply its mind to the relevant companysiderations, or that the authority was influenced by irrelevant companysiderations, or that the authority was actuated by improper motives.
Sd F. A. Ahmed President New Delhi the 25th June, 1975 On June 27, 1975 the President of India made the following order In exercise of the powers companyferred 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 companyrt for the enforcement of the rights companyferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any companyrt for the enforce men of the above mentioned rights shall remain suspended for the period during which the Proclamation 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.
The maintenance of Internal Security Act.
The respondents were petitioners in the High Courts.
These different High Courts were number agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential Order dated 27th June, 1975.
The High Courts of Allahabad, Madhya Pradesh, Andhra Pradesh, Delhi, Karnataka and Rajasthan and the Nagpur Bench of the Bombay High Court before whom these writ petitions were heard on the preliminary issue as to maintainability, took the view that the Presidential Order, dated 27th June, 1975, did number wholly bar the maintainability of these petitions, but left open certain grounds of challenge which companyld yet be urged against the validity of the order of detention.
N. Ray, C.J. These appeals are by certificates in some cases and by leave in other cases.
The State is the appellant.
On June 29, 1975 another order was issued by the President whereby the words except the State of Jammu Kashmir in the order dated June 27, 1975 were omitted.
The case of every person including a foreigner against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the companymencement of this section, shall, unless such person is sooner released from detention, be reviewed within fifteen days from such companymencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in Sub section 1 have been issued ,hereinafter in this section referred to as the emergency and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and companymunicate a companyy of the declaration to the person companycerned.
