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(8) The introduction of Article 359(IA) of the Constitution has no bearing on the question where the impugned detention is challenged as being one not according to law, in the view that there cannot be any executive action taken to the prejudice of any person except according to law.

(9) The addition of Article 359(1A) does not render immune executive action, which is otherwise invalid, from attack merely because of the proclamation of emergency which was in operation when action was taken. This view was taken on the basis of what the Supreme Court had held in a series of cases including : (1) State of Madhya Pradesh v. Bharat Singh, Air 1967 Sc 1170(2) and (2) The District Collector of Hyderabad v. M/s. lbrahim and Co. etc., . In the former case, under the provisions of the Madhya Pradesh Public Security Act. 1959, two-fold action was taken : (i) to extern the person concerned from the State of Madhya Pradesh and (ii) to specify where he should reside. The said Act did not give any opportunity to the person concerned of being heard and he had no say in the matter of where he was being asked to reside and without any enquiry about his means of subsistence at the place selected. It was conteded for the State that in view of the state of emergency which had been declared and not withdrawn, the detenu could not move the Court under Article 226 on the ground that his fundamental freedom guaranteed under Article 19(1)(d) of the Constitution had been infringed. The Act was brought into force before the declaration of emergency by the President. It was contended for the State that though the impugned provision in that case (section 3(1) (b) ) was void when it was enacted and was revived by the proclamation of emergency, Article 358 protected action, both legislative and executive, taken after proclamation of emergency and hence the same could not be challenged on the ground that it infringed the fundamental freedoms under Article 19. This argument was repelled as follows :- "INour judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 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 to make or take, but for the provisions contained in Part Iii of the Constitution. Article 358 does not purport to 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 laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Art, 19 were operative would have been invalid..."

(10) We also repelled in our previous decision the contention which was put forward before us that in view of the 38th (Constitutional) amendment, and the earlier Ordinance and later Act 39 of 1975 amending the Misa, in the light of the Presidential order declaring the emergency warranted a different legal principal being adopted in the case of such detentions. We explained, following the above said decisions of the Supreme Court, that the only effect of the 38th amendment adding Article 359(I A) and the Presidential order pertaining to the present emergency was that what was originally confined to Article 19 alone by reason of Article 358 of the Constitution had been extended to some other rights mentioned in part Iii of the Constitution. In the light of the decisions of the Supreme Court, we held that the only disability created by the introduction of Article 359(I A) was that any legislative or executive action which was otherwise valid could not be challenged during such emergency on the ground that any rights conferred by part Iii had been violated.