Document Fragment View

Matching Fragments

7. Before we proceed to deal with the decisions that have been relied on by counsel on both sides, it will be convenient to refer to the relevant provisions of the Constitution and the objects sought to be achieved by those provisions. Article 352 empowers the President, if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by way of external aggression or internal disturbance, to declare so by a proclamation. This power is to be exercised by the President on his subjective satisfaction which is not justiciable. The necessary consequence of such a declaration would be to give freedom to the State to make any law or to take any executive action without the restrictions imposed by Article 19 of the Constitution (Article 358). During the existence of an emergency therefore, the State as defined in Part III of the Constitution would be untrammelled by the various well-known guarantees conferred in favour of citizens by Article 19 of the Constitution. This result follows automatically on the declaration of emergency. In addition, the President has been conferred the power by order to declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of any of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order (Article 359(1)), and this Order may be extended to the whole or any part of the territory of India (Article 359 (2)). The object is evident and clear. During an emergency declared under Article 352, after an order has been passed by the President under Article 359 (1) of the Constitution, there shall not be any motion before any court for the enforcement of such of the rights conferred by Part III of the Constitution as are mentioned in the President's Order. Prima facie therefore, the effect of such an order would be to neutralise or to make ineffective or to make non-available the rights conferred by Part HI as are mentioned in the Order. Article 19 deals with the well-known freedom but those well-known freedom can be infringed by law during the existence of an emergency as declared by the President under Article 352. In other words, during such times, the Parliament or the Legislature if free to enact laws uninhibited by the pro-visions of Article 19 of the Constitution and no law made by Parliament or any Legislature shall be liable to be impugned during the said period as infringing (he freedoms guaranteed by Article 19. Article 359, as we see it, goes a step further and gives the power to the President to make certain other fundamental rights specified in the Order issued under that Article unavailable during the period of emergency or for the shorter period mentioned in the Order. The correct approach in understanding the effect of the Order of the President is to seek and find out what, in substances, is the nature and content of the rights the enforcement of which stands barred. If the rights sought to be enforced through court are identifiable as or directly relatable to the rights mentioned in the President's order it would be necessary to hold that such rights, whether as embodied in the Articles of the Constitution mentioned in the President's Order or in any statute passed by Parliament would be unavailable after the passing of the Order. The President's Order mentions Article 14. It would not therefore be possible to contend that Section 3 (1) (c) of the Act as amended by Ordinance 11 of 1974 or any of the provisions thereof is discriminatory (1968 SC 173). Passing on to the other Articles mentioned in the Order, we find Article 21 and Clauses (4), (5), (6) and (7) of Article 22. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The neutralisation of Article 21 may not have the effect of wiping out a law already made by Parliament providing for the deprivation of life or personal liberty. But when we come to Clause (5) of Article 22, what we find is that the clause itself has provided certain procedural safeguards in favour of persons taken into custody as a measure of preventive detention. Thus those under preventive detention have been conferred certain rights constitutionally. Clause (5) of Article 22 insists that when a person is detained under a law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall further afford him the earliest opportunity of making a representation against the order. These are specific rights conferred by the Constitution itself on a person who has been detained under a law providing for preventive detention. Any law providing for preventive detention should therefore contain provisions for making grounds available to the detenu as early as may be and enabling him to make a representation, as observed by the Supreme Court in State of Bombay v. Atma Ram Shridhar Vaidya :

11. Reliance was placed on two decisions of the Supreme Court, which, it was contended, would militate against the view that Section 8(1) of the Act would not be available after the Presidential Order under Clause (1) of Article 359 of the Constitution. The decisions are in Durgadas Shirali v. Union of India and that in Jaichand Lal Sethia v. The State of West Bengal . In the former case Justice. Ramaswami made the following observations in paragraph 5:

Before proceeding to deal with these points raised on behalf of the petitioner it is necessary to state that in this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the President - one dated November 3, 1962 and the other dated November 11, 1962 issued in exercise of the powers conferred by Clause (1) of Article 359 of the Constitution. It was held by this Court that the sweep of Article 359 _(!) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Articles 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes Articles 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance, rule or order made thereunder on the ground of contravention of Article 19 because as soon as a Proclamation of Emergency is issued by the President under Article 358 the provisions of Article 19 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of his right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.
But the appellant can challenge the validity of the order on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359 (1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilised for some indirect purpose not connected with the object -of the statute or the mischief it seeks to remedy.
(5) But it is obvious that what the last clause of the Presidential Order Postulates is that the Defence of India Ordinance or any rule or order made thereunder is valid. It is true that during the pendency of the Presidential Order, the validity of the Ordinance, rule or order made thereunder cannot be questioned on the ground that they contravene Articles 14, 21 and 22; but this limitation will not preclude a citizen from challenging the validity of the Ordinance, rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation. In this connection, we ought to add that the challenge , to the Ordinance, rule or order made thereunder cannot also be raised on the ground of the contravention of Article 19, because as soon as a Proclamation of Emergency is issued by the President, under Article 358 the provisions of Article 19 are automatically suspended. But the point still remains that if a challenge is made to the validity of the Ordinance, rule or order made thereunder op a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1), such a challenge is outside the purview of the Presidential Order; and if a petition is filed by a citizen under Article 32 on the basis of such a challenge, it cannot be said to be barred, because such a challenge is not covered by the Presidential Order at all.