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21. [398 F-G] Rustom Cavasajee Cooper v. Union of India [1970] 3 SCR 530, 578, referred to.
The circumstance that The pre-constitution rights continued in force after the enchantment of the Constitution in view of Art. 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty. having the same content as the right conferred by Art. 21 would fall within the mischief to the Presidential order. [398 C-H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed the eclipse also is removed and the law becomes valid. [399 A-B] As regards the doctrine of merger, every prior right to personal liberty merged in the right to personal liberty conferred by Part III. But whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty. In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III. [399 B-C] Article 361(3) speaks of a process for the arrest or imprisonment of a Governor issuing from any court. Fundamental Rights can be exercised as against judicial orders but the circumstances in which such a Process may come to be issued. if at all, may conceivably affect the decision of the question whether a Presidential Order issued under Article 359(1) can bar the remedy of an aggrieved Governor.[400 B-C] A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievance at the instance of a private party that Art. 256 has not been complied with by a State Government. [400 D] [As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation His Lordship preferred to express no firm opinion though, the greater probability is that such a challenge may tail in face of a Presidential order of the kind which has. been passed in the instant case. [400 D-E] The existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting. those rights from the purview of the order. [400 E] Dhirubha Devisingh Gohil v. The State of Bombay [1955] 1 SCR and Makhan Singh v State of Punjab [1964] 4 SCR 797, 818-819, applied.

Reference to Articles 256, 265 and 361 has make by the respondents to show that Article 21 is not the repository of rights to life and liberty. These references arc irrelevant. Article 256 do. not confer any right on any person. It deals with relations between the Union and the State. Article 265 has nothing to do with right to personal liberty. Article 361 (3) refers to the issue of a process from any court which is a judicial act and not any Executive action. In any event, these Articles have not relevance in the present appeals.