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38. The pre-eminent questions are four. First, is the Presidential Order under Article 359 a bar at the threshold Second, is Article 21 the sole repository of right to life and personal liberty Third, is the Presidential Order subject to the rubric of Rule of Law ? Fourth, is Section 16A(9) of the Act a rule of evidence ?

39. The first question turns on the depth and content of the Presidential Order. The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental right. While a Proclamation of Emergency is in operation the Presidential Order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights. The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359(1) does not, Article 359(1 A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only.

51. Under Article 359 the Presidential Orders have been of two types. On 3 November, 1962 in exercise of powers conferred by Clause (1) of Article 359 of the Constitution the President declared that "the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India Ordinance 1962 or of any rule or order made thereunder". The 1975 Presidential Order under Article 359(1) does not have the words "if such a person has been deprived of any such right under the Defence of India Ordinance 1962 or any rule or order made thereunder". In other words, the 1962 Presidential Order is limited to the condition of deprivation of rights under the Defence of India Ordinance or any rule or order made thereunder whereas in the 1975 Presidential Order as statute is mentioned. The illegality of orders was challenged in Makhan Singh's case (supra) in spite of the Presidential Order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.

156. The observations in the cases referred to-above show that the validity of the detention orders could be assailed despite the Presidential orders of 1962 and 1974 under Article 359 in case the right relied upon was not one covered by these Presidential orders. The protection .afforded by those Presidential of derswa net absolute, it was conditional and confined to ruling out the challenge to detention orders and other actions taken under the provisions mentioned in those Presidential orders on the score of contravention of the Articles specified in those orders. If the detention of a detenu was not in accordance with the previsions mentioned in the Presidential -orders, the Presidential orders did not have the, effect of affording protection to the detention order and it was permissible to challenge the validity of the detention on the ground that it had not been made under the specified provisions but in, contravention, of those provisions.

158. The difference in phraseology 08 the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June 27, 1975 a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders.