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The learned Advocate General reinforces the argument by contending that, in the context of our Constitution, "law" must be one which must be relatable to one of the subjects mentioned in three Lists appended to Seventh Schedule of the Constitution. He contends that the subjects on which the Presidential power can be exercised whilst exercising the power under, Part XVIII are not subjects mentioned in any of those Lists and that those powers, or, at least, quite a majority of them, can be exercised only by Parliament exercising its constituent power under Article 368 and not by Parliament or any other Legislature exercising the ordinary legislative powers. The learned Advocate General further contends that when the President is exercising powers under Part XVIII, he cannot be said to be doing so either as the executive head or a limb of the Legislature and that, having regard to the definition of "the State" contained in Article 12, the President, when exercising the above powers, cannot be described as "the State" within the meaning of Part III of the Constitution. On the other hand, Mr. Daru contends that, even though the power exeicisable by the President under Article 359 may be his special or individual power, that power must necessarily be exercised by him within the limits of the Constitution and that, by whatever nomenclature the power of the President under the above Article may be described, that power must necessarily be subject to the other provisions of the Constitution, and, unless there is provision, express or implied, in the Constitution itself, the power of the President must be subject to the Fundamental Rights enshrined in Part III of the Constitution, which constitute the main bulwark of the Indian democratic republic. Mr. Daru submits that, therefore, the problem cannot be answered by merely determining the nature of the power of the President, but the problem is of the construction of Article 359, and, if the Article is read with the other Articles of the Constitution, including the provisions contained in Part III, and, if any conflict happens to be noticed between the two sets of provisions, the problem is of the harmonious construction of the various provisions of the Constitution and the Court must undertake a decision as to whether Article 359 is subject to the provisions contained in Part III or vice versa.

15. Although it is useful and even necessary to ascertain the true nature of the powers conferred on the President by Part XVIII, it will not be proper to lump up all the powers together and arrive at a conclusion on an overall consideration of all the powers. The authorities on whom 'the powers are conferred by Part XVIII are different and the powers which are conferred on them are not of a uniform nature. The authorities: on whom the powers, are conferred under that Part are the Union, the Parliament and the President. The powers which have been conferred on the first two authorities, the Union and the Parliament, by no stretch, of imagination can be described as constituent. For example, the power 'conferred on the Union executive under Clause (a) of Article 353 is undoubtedly' of an executive nature and by no stretch of imagination can be described as either constituent or legislative. There is also no doubt that the power which has been conferred on the Parliament under Clause (b) of Article 353 and that which is derived by it on account of the declaration made by the President under Clause (b) of Article 356 are legislative in nature and would have to pass the test, for example, of Article 13 of the Constitution. The powers which are conferred on the President are also of a varied nature. For example, under Clause (a) of Article 356 the assumption of the functions of the Government of the State and an or any of the powers vested in or exercisable by the Governor is necessarily executive in character. Under the circumstances, in order to answer the problem in hand, the best thing is to concentrate one's attention on the nature of the power contained in Article 359, although, in determining that nature, one may bear in mind and derive assistance from the other provisions contained in Part XVIII and all the other powers of the President. Approaching the problem in that way, the power conferred on the President under Article 359 is, as we have already pointed out above, a power, which entitles him to modify, during the period of emergency, the fundamental right enshrined in Article 32 and to restrict pro tanto the jurisdiction of the Supreme Court in regard to the enforcement of fundamental rights. The power also entitles the President to modify the constitutional right given, to a citizen under Article 226 of the Constitution to move the High Courts for the enforcement of his fundamental rights and, to that extent affects the jurisdiction of the High Courts. To that extent, during, the period of emergency, the provisions of Articles 32 and 226 certainly corne to be affected and modified. It will be noticed that, in regard to the first, power, the Presidential power is coeval to the power of the Parliament, under Article 368 and, in regard to the second power, is superior to the; power of the Parliament under the same Article inasmuch as, whereas the; Order of the President can affect directly the provision of Article 226, that of the Parliament cannot do so unless the affection is ratified by the-Legislatures of a majority of the States. Therefore, in our judgment, the. learned Advocate General is right in contending that the aforesaid two powers of the President cannot be described as ordinary legislative powers At the same time, there is no doubt whatsoever that the extent of the-power is not the same as the extent of the power of the Parliament under-Article 368. Whereas, under Article 368, the Parliament can amend any Part of the Constitution, under Article 359, the power of the President can affect Articles 32 and 226 only and that too, in regard to the enforcement of only those rights which the President selects for being treated under his Order. However, the learned Advocate General submits that the Presidential power is of wider amplitude and that the Presidential Order is potent enough, not only to affect Articles 32 and 226, but all the Articles comprised in Part III of the Constitution. He contends that if any Article is mentioned in the Presidential Order as one in regard to which the citizen is deprived of the remedial right, the effect thereof is to introduce a sort of a proviso to that particular Article to the effect that the right of the citizen to move any Court for the enforcement of the right is correspondingly taken away. In other words, the effect of the contention of the learned Advocate General is that the Presidential Order under Article 359 has the power not only to reach Article 32 and 226 but is potent enough to reach all the Articles under Part III of the Constitution. We are unable to agree with this submission. The language of Article 359 does not leave any doubt that the President, acting thereunder, cannot suspend any of the fundamental rights except the one guaranteed by Article 32. On the language of Article 359, we have no doubt whatsoever that the President has no power whatsoever to take away or abridge or even to suspend any of the other fundamental rights guaranteed by Part III of the Constitution. That being so, although the Presidential Order can, in some respects, do the same thing in the time of emergency in regard to the operation of the whole of Article 32 and a part of Article 226 which the Parliament can do at all times, the Presidential Order cannot affect the other fundamental rights guaranteed by Part III, which the Parliament can do at all times. Having regard to this difference between the powers of the President and the powers of the Parliament acting under Article 368, it will not be correct to say that the Presidential power under Article 359 of the Constitution is of the same kind as the constituent power of the Parliament under Article 368. Realising the importance of this distinction, the learned Advocate General makes an alternative and a narrower submission. On a concession that the two powers are not the same, he contends that the power of the President under Article 359 is akin to the constituent power of the Parliament under Article 368 of the Constitution. In our judgment, even if there is any affinity in this regard between the two powers, the affinity extends only in regard to a very limited field, the field of Article 32, and a small field from out of Article 226. Therefore, it would not be proper to equate the two powers together in regard to the potentiality of that power to affect or override the fundamental rights guaranteed by Part III, for, in effect, the attempt of the learned Advocate General is to show that an order passed by the President under Article 359 is not subject to the provisions contained in any of the Articles occurring in Part III. Moreover, in determining the nature of the Presidential power under Article 359, one has also to bear in mind that the Presidential power can even reach the right of the citizen to move any other ordinary Court and to affect the jurisdiction of such ordinary Courts in regard to the enforcement of the fundamental rights. As we have already pointed out, that power cannot be described as constituent but ii essentially legislative in character. Therefore, overall study of the nature of the power conferred on the President by Article 359 reveals that it is a motley power-a power which has the potentiality to affect two constitutional provisions and also the ordinary law of the land r elating to the remedy of the citizens and jurisdiction of ordinary Courts.

This result is well put in Prof. Chushman's syllogism.

Major premise: Legislative power cannot be constitutionally delegated by Congress.

Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commissions.

Conclusion: Therefore the powers thus delegated are not. legislative powers.

They are instead administrative or quasi-legislative powers.

On this line of reasoning, Mr. Daru contends that, though the President is a constituent delegate, his activity as such a delegate cannot result in amending the Constitution. In our judgment, the analogy is not apt. In the case of a legislative delegate, the aforesaid problem arises because the Legislature itself being a delegate of the Constitution-making body, cannot delegate its legislative powers to another delegate. But, in the case of the President, it is the Constitution-miking authority which has delegated its power to him and, therefore, the aforesaid arguments cannot be brought in aid inasmuch as the President would be directly doing that which the Constitution itself permits him to do. However, having regard to the motley nature of the Presidential power, its limited extent which affects Article 32 and a part of Article 226 only, the Presidential power cannot be equated with or held akin to the constituent power which the Parliament enjoys under Article 368. The power is limited in character and can only affect one Article and a part of another Article, whereas the constituent power of the Parliament is of full plenitude and can affect the whole or any part of the Constitution. Moreover, the Presidential power also affects the ordinary law of the land relating to the jurisdiction of ordinary Courts. In our judgment, therefore, from the nature and the content of the aforesaid power, it is not possible to say that the Presidential power can violate any of the fundamental rights guaranteed under Bart III of the Constitution except Article 32. Thus the Presidential power cannot proprio vigore infringe Article 14.

23. However, we are conscious of the fact that, in the above view, some difficulties may arise and those difficulties may have to be faced some day. One difficulty that may arise may be that a Presidential Order may have to meet the challenge under the very fundamental right in regard to which the President may intend to bar the right of the citizen to move or to bar the jurisdiction of a Court, for, it is obvious that the Presidential Order, if it violates that selected fundamental right, will be void and, therefore, may be ineffective to grant the immunity to legislative acts from judicial scrutiny which the President intends to give. To overcome such a difficulty, the President may have first to frame a valid order which is not violative of the fundamental right he intends to reach and if he intends that his own order, like the other laws, should also be exempt from judicial scrutiny in regard to the enforcement of fundamental rights, he will have to pass a second order so exempting his previous order. If the President does not do so, then, it is obvious, his order would be chasing a shadow. For example, if the President intends to grant immunity from judicial scrutiny in regard to the fundamental right under Article, 14 to his own order, he would not be able to do so because his order would be void from the very beginning. That might make the Presidential Order unworkable. However, it is not necessary for us to resolve this problem. It may be that the problem may be capable of being resolved on the doctrine of arguing in a circle as it was resolved in another respect by Their Lordships of the Supreme Court in Mohan Chaudhary's case, already referred to. It may be that the problem may be capable of being solved by holding that a Presidential Order itself must receive the same immunity from judicial scrutiny in regard to the same fundamental right in regard to the enforcement of which he has directed the remedial right to be suspended. However, in the present petitions, it is not necessary for us to resolve the problem because, even on the assumption that the problem can be resolved in some of the aforesaid ways, the impugned Presidential Order cannot be granted immunity from judicial scrutiny under Article 14. The impugned Presidential Order operates in a narrow field. The Presidential Order bars the right of the citizen to move a Court only if a condition precedent is satisfied and the condition precedent is that the deprivation of the fundamental right must be either under the Act or the Rules or an order made thereunder. The impugned Presidential Order cannot be said to have been made under any of these three instruments. Under the circumstances, the condition precedent is not satisfied in regard to the impugned Presidential Order and, therefore, the latter is not immune from an attack under Article 14.