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8. We shall first take up the argument for the State that the subject cannot rely upon the fundamental freedoms under Articles 14 and 19, as the President's proclamation of emergency declared on 26th of October, 1962 under Article 352, Clause (1) is in operation. Articles 358 and 359 are relied upon by the State. On the proclamation of emergency under Article 358, the provisions of Article 19 are automatically suspended. Under Article 359 where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. In exercise of the powers under Article 359, Clause (1), the President has suspended the enforcement of the rights conferred under Articles 14, 21 and 22 of the Constitution during the operation of the proclamation of emergency if the person has been deprived of any such rights under the Defence of India Act, 1962. The suspension of rights under Part III is limited in its scope. As pointed out in Ananda v. Chief Secretary, Government of Madras .

9. The Advocate-General submits that as the impugned order was issued during the operation of the proclamation of emergency, if is at any rate immune from attack on grounds based on Article 19. The view of our learned brother, Kailasam, J., to the contrary relying on the decision in Tuticorin T. & C. Corporation (P.) Ltd. v. State of Madras (1966) 1 M.L.J. 313, is questioned. The learned Judge following the said decision holds that though the order is a post-emergency order passed in 1966, it should be taken as in pursuance of pre-emergency legislation, that is, the Essential Commodities Act, 1955, and so it should be held that Article 358 of the Constitution will not deprive a person of his rights under Article 19 of the Constitution. On this reasoning the learned Judge would hold that the impugned order is liable to be questioned as an infringement of rights under Article 19. While we arc also of the view that the order could be challenged under Article 19, our reasoning is on slightly different grounds. Merely on the ground that the order is in pursuance of a pre-emergency legislation it cannot escape the blanket cover from attack under Article 19 provided under Article 358. Admittedly it is a post-emergency law and during the operation of the proclamation of emergency Article 358 removes the inhibition of Article 19 from a State making any law or taking any executive action. That the power to make law or take any executive action has been derived from a pre-emergency Act, is not made an exception to the application of the Article. In Tuticorin T. & C. Corporation (P.) Ltd. v. State of Madras (1966) 1 M.L.J. 313, what was questioned was the constitutionality of a law made anterior to the proclamation of emergency. The Legislature had passed the Act and the President's assent to the law had been given before the proclamation of emergency. The Act had been published before the proclamation of emergency. The Act provided that it shall come into force on such date as the Government may by a notification appoint and the notification bringing the Act into force in certain districts of this State was dated 8th of September, 1964, that is after the proclamation of emergency. The learned Judge held that the law was made when the Legislature passed it, the President accorded his assent and the Act was placed on the statute book. As that was a date anterior to the proclamation of emergency, the aggrieved parties were not denied the right to impugn the law on the ground that it offended Article 19 of the Constitution. What was impugned was not just the post-emergency notification. Here what is impugned is the very post-emergency order. The provisions of the order in question are stated to offend Article 19 of the Constitution. Clearly, therefore, the ruling relied upon cannot apply for assailing the order under Article 19.

11. As a pre-emergency Act whose constitutional validity is assumed, orders passed by virtue of the powers granted under the Act must pass the gauntlet of Part III of the Constitution. If the impugned order is violative of Article 19, it fails for want of the necessary delegated power under the parent legislation or as exceeding the limits of the parent legislation. There has been no amendment of the Act after the proclamation of emergency re-vitalising it as a post-proclamation legislation, sheltered from attacks based on Article '19, If Section 3 of the Act could on its language sustain an order violative of Article 19, then Section 3 itself is void and so the delegate could pass no order thereunder. As pointed out in State of M.P. v. Bharat Singh (1968) 1 S.C.J. 173 : (1968) M.L.J. (Crl.) 24 : A.I.R. 1967 S.C. 1170, 1173, Article 358 which suspends the provisions of Article 19 during an emergency declared by the President under Article 353 is in terms prospective; after the proclamation of emergency nothing in Article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take. Article 358, however, does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency. In that case acting under Section 3 of the Madhya Pradesh Public Security Act, XXV of 1959 a pre-proclamation of emergency Act, an order was passed on 24th April, 1963, severely curtailing the movements and actions of a person. When objections based on the continuance of the state of emergency were raised to the challenge by the petitioner under Article 226 of the validity of the order under Article 19 (1) (d) and (e), the Supreme Court observed:

37. The situation with regard to Articles 358 and 359 is simple, and clearly beyond doubt. The following authorities clarify the actual position : Makhan Singh v. State of Punjab , Ananda v. Chief Secretary, Government of Madras , Durgadas v. Union of India , Jaichand Lal v. State of West Bengal Tuticorin T. & C. Corporation (P.), Ltd. v. State of Madras (1966) M.L.J. 313, a decision of a learned single Judge of this Court, and Narendra Kumar v. Union of India . The effect of this case-law is, certainly, that as a piece of post-emergency legislation, or subordinate legislation, this order is protected from attack upon any ground stemming from Article 19, under Article 358. But it is not protected from attack on grounds under Article 14, and that is very clear from what their Lordships of the Supreme Court stated in Ananda Nambiar's Case (1966) 2 S.C.R. 406 : (1967) 1 S.C.J. 272 : (1967)M.L.J. (Crl.) 165 : A.I.R. 1966 S.C. 657 : the simple reason is that the fundamental rights of citiens under this Article are being affected by this order, otherwise than under the Defence of India Ordinance or Rules or Orders made thereunder.