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The rulings in Sakal Papers case (supra) and Express News- papers case (supra) also support the competence of the petitioners to maintain the proceedings.

Article 358 of the Constitution was invoked by the Additional Solicitor General to raise the bar to the maintainability of the petition. Under Article 358 while a proclamation of a emergency is in operation nothing in Article 19 shall restrict the power of the State 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. It was, therefore, said on behalf of the Government that the petitioners could not challenge the 1972-73 Newsprint Policy during the proclamation of emergency. Counsel on behalf of the petitioners contended that Article 358 is inapplicable because it has no application to the law or executive action taken prior to the proclamation of emergency. The Newsprint Policy was said by the petitioners to be a, continuation of the old newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971. The restrictions on newsprint policy were imposed before the proclamation of emergency. It was, therefore, said that these restrictions could be challenged.

In District Collector of Hyderabad & Ors. v. M/s Ibrahim & Co. etc.(1) this Court considered whether the Sugar Control Order 1963 was protected under Article 358 and 359 because the President had declared that state of emergency. The Sugar Control Order 1963 was made in exercise of powers conferred by section 3 of the Essential Commodities Act. The order placed restrictions on sale and delivery by the producers. The Order also controlled the production, distribution of sugar by producers or recognised dealers. The Order regulated the movement of sugar at fixed price. The state of emergency was declared on 28 October, 1962. It was contended that on the issue of proclamation of emergency the State is, for the duration of the emergency, competent to enact legislation notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. The State was also said to be competent to take executive action during the proclamation of emergency which the State would for the provisions contained in Article' 19 of, the Constitution be competent to make. In Ibrahim's case (supra) the State made an executive order. It was said "the executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken". The Order of the State Government in that case was held to be contrary to statutory provisions contained in the Sugar Dealers Licensing Order and the Sugar Control Order. The executive action was, therefore, held not to be protected under Article 358 of the Constitution.

Originally, the petitioners challenged the validity of the Newsprint Policy for 1971-72. The petitions were amended. As a result of the amendment the petitioners challenged the validity of the 1972-73 newsprint policy. The contention of the petitioners is correct that the impeached policy is a continuation of the old policy. Article 358 does not apply to executive action taken during the emergency if the same is a continuation of the prior executive action or an emanation of the previous law which prior executive action or previous law would otherwise be violative of Article 19 or be otherwise unconstitutional. The contention on behalf of the Government that the 1972-73 policy is protected during the proclamation of emergency and is a mere administrative action is unsound Executive action which is unconstitutional (1) [1970] 3 S.C.R. 498.

is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted.

This Court in State of Madhya Pradesh & Anr. v. Thakur Bharat Singh(1) considered whether the State Government could make an order under the Madhya Pradesh Public Security Act 1959 directing that Thakur Baharat Singh shall not be in any place in Raipur District and that he was to reside in a named town. The Order was made on 24 April, 1963. The Government contended in the Madhya Pradesh case (supra), that Article 358 protected legislative and executive action taken after the proclamation of emergency which was declared on 20 October, 1962. This Court rejected the contention of the State that the Order was protected by Article 358. This Court held that if the power conferred by the 1959 Act to impose unreasonable restrictions offended Article 13 by taking away or abridging the rights conferred by Part El of the Constitution the law in contravention of Article 13 would be void. Article 358 suspends the provisions of Article 19 during an emergency. This Court said that all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State but for the provisions in Part III of the Constitution. Article 358 does not invest the State with arbitrary authority to take action to the prejudice of citizens, and others; it merely provides that so long as the proclamation of emergency subsists law may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. The Madhya Pradesh was (supra) is an authority for the proposition that Article 358 does not operate to validate any legislative provision which is invalid because of the constitutional prohibition. In the present case, the impugned newsprint policy is continuation of prior executive action and of previous law. Therefore, in our judgment there is no merit in this preliminary objection.