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 f he Constitution only.
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 preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
279, 355 356/75.
171, 95, 97, 99, 109, 115, 116 and 168/75 and Criminal Appeal No.
Manek Ben In, Crl.
W. Adik Advocate General and D. R. Dhanuka and M. N. Shroff for the state of Maharashtra in Crl.
Mr. Deepchand Jain M s. Sharad Manohar and Amlan Ghosh Niren De, Attorney General for India, V. P. Raman, Addl Sol.
Broadly, these High Courts have taken the view that despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example,.
355 356/75 N. Shroff and H. S. Parihar M. C. Nihalani, Adv.
N. Sachthey, Girish Chandra, S. P. Nayar and P. P. Rad in Cr.
279 355 356/75 Ramchandra Reddy, Adv.
Appeal by Special Leave from the Judgment and order dated 31.10.1975 of the Delhi High Court in Criminal Writ No.
Girdhar Malviya and o. P. Rana for the appellant State of U. P. in criminal appeals Nos.
General, R. N. Sachthey, Girish Chandra and S. P. Nayar for the appellant in Civil Appeals Nos.
Some of these High Courts have further held that the detenus can attack the order of detention on the grounded 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.
S. Wasu, Advocate General and O. P. Rana for the state of Punjab in Crl.
279, 355 356/75.
1846 1849/75 and 1926/75 Rama Joise, N. M. Ghatate and S. S. Khanduja for respondent in CA No.
From the Judgment and order dated 1.9.75 of the Madhya Pradesh High Court m M. P. No.
Habeas Corpus petition No.
1975, did number aspect maintainability of the habeas companypus petitions to question the legality of the detention orders and such petitions companyld be proceeded with despite that order.
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 suspended during the operation of the Proclamations of Emergency dated December 3, 1971 and June 25, 1975.
41 of 1976 Appeal by Special Leave from the Judgment and order dated 31 10.75 of the Delhi High Court in Criminal Writ No.
The Act of 1962 expired on July 10, 1968.
M. Jain for the appellant in Cr.
128/75 and Criminal Appeal No.
and P. P. Rao for the State of Andhra Pradesh in Crl.
A, Nos.
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.
380/75.
1845/75 K Daphtary M. Veerappa N.M Ghatate Rama Joise, S.S. Khanduja Miss Lilly Thomas, Pramod Swaroop, M. Veerappa, S. Balakrishnan Sharad Manmohan, M.K. Jain, Altaf Ahmed, R.P. Goyal, K.N. Tripathi, C.C. Dwivedi and Mrs. K. Hingorani for respondent in CA No.
The maintenance of Internal Security Act, 26 of 1971, MISA was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan.
K. Tikhu, Advocate General and Vineet Kumar for the state of Jammu and Kashmir in CA.
Being aggrieved by the finding recorded by these High 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.
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.
General, P. P. Rao and G. D. Gupta far the State of Haryana in Crl.
1845 1849 of 1975 From the Judgment and order dated 26.11.1975 of the Karnataka High Court in W. N. Nos.
V. P. Raman, Addl.
This proclamation was immediately followed by the defence of India ordinance, 4 of 1962, which was later replaced by the Defence of India Act, 1962.
158 of 149/75 and Criminal Appeal No.
The above questions arise in criminal appeals Nos.
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.
The judgment of the majority was delivered by Ganjendragadkar J. Sulbba Rao J. gave a dissenting judgment.
3 of 1976 From the Judgment and order dated 12.12.1975 of the High Court of Rajasthan in D. B. Crl.
355 356 of 1975.
Indira Nehru Gandhi v. Shri Raj Narain 1 , to explain at some length.
From the judgment and order dated 12.11.1975 of the Allahabad Court in W.P. Nos 7428 and 6885 of 75 and Civil Appeal Nos.
There upon 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.
Niren De, Attorney Genl.,
1848/75.
3318, 4101, 4103, 4177 and 4178 of 1975 and Criminal Appeal No.
Order dated December S, 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 order shall extend to the whole of the territory of India.
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 lo move for enforcement of tile 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.
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.
355/75 Mr. Deepchand Jain In Crl.
Genl.,
279/75.
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.
356/75.
A. No.
279/75.
279 of 1975.
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 .
C. Dwivedi, S. S. Khanduja, Dr. N. M. Ghatate, R. P. Goyal, K. N. Tripathi and K .K. Jha, for the respondent in Crl.
380 of 1975.
In September 1974 the MISA was amended by ordinance 11 of 1974 to include sub section c in section 3 1 , by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947.
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.
1849 and R.I. 1926/75 N. Byra Reddy and Narayan Nettar for the appellant in CA No.
Sd F. A. Ahmed President New Delhi the 25th June 1975 On June 27, 1975 the President of India made the following order 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 their rights companyferred by article 14, article 21 and article 22 of the Constitution and all proceedings pending in any companyrt for the enforce h 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.
N. Kakar, Adv.
389 of 1975 Appeal by Special Leave from the Judgment and order dated 5/ 6/8th Dec. 1975 of the Bombay High Court in Criminal Appln.
1606 of 1975 and Applicant Interveners Smt.
General, R. N. Sachthey and S. P. Nayar for the state of Himachal Pradesh in Crl.
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.
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.
M. Tarkunde, S. K. Sinha, C. K. Ratnaparkhi, S. K. Verma and M. P. Jha for respondent I in Criminal A. 380/75.
380/75.
S. Khanduja for respondent in CA No.
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.
A. No.
For the applicant lnterveners Smt.
Maharaj Jai Singh A. K. Sen, R. H. Dhebar, R. C. Bhatia and B. V. Desai M s. Surinder Mohan Suraj Bhan Gupta M s Sharad Manohar and R N. Nath Mr. V. K. Singh Chowdhry Mr. Santokh Singh.
279, 35S 3S6/75.
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.
M. Qazi and M. N. Shroff, for the appellants in Criminal Appeal No.
Bakshi Sita Ram, Adv.
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.
A. No.
279, 355 356/75.
for the state of Madhya Pradesh for the appellant, in Criminal Appeal No.
M. Abdul Khader, Advocate General and D. K. M. K. Nair for the State of Kerala in Crh As.
Article 14 was added to the order of November 3, 1962 by the amendment dated November 11, 1962.
M. Ghatate and S. Balakrishnan for respondents 3 8 and 2, 4 7 in Cr.
1926/75.
Shanti Bhushan, R. P. Goyal, S. S. Khanduja, B. R. Agarwala C. L. Sahu and R. N. Nath, for the respondent in Criminal Appeal No.
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 rights 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.
Manek Ben M s. S. Venkataswami, C. S. Vaidianatha, Hardev Singh and R. S. Sodhi.
Soli J. Sorabjee, S. S. Khanduja, Mrs. K. Hingorani, K. N. Tripathi R. P. Goyal and Yatindra Singh for the respondent in Crl.
A. 279 and 1845/75.
on November3, 1962 the President issued an order under Article 359 1 of the Constitution, which was later amended by an order dated November I 1, 1962 stating that the right of any person to move any companyrt for the enforcement of the rights companyferred by Article 14, 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 thereunder Emphasis supplied .
A. No.
355/75.
355 356 of 1975.
S. Krishnan and A. V. M. Krishnan for respondent No.
41 of 1976 Appeal by Special Leave from the Judgment and order dated 19 11 1975 of Delhi High Court in Criminal Writ No.
597 of 1975 and Criminal Appeals No.
149/75 and Criminal Appeal No.
Ram Punjwani, Dy.
2 in Criminal Appeal No.
A. No.
Genl.,
