During the operation of the Emergency from 1962-1969, the Supreme Court confined its role only to an examination of the propriety of instances of preventive detention in terms of the applicable legislation. The Court did not endeavour to rule on the scope and operation of the Constitutionally guaranteed Fundamental Rights during an Emergency. Nor did it assert its powers of judicial review in terms of the Constitutionally entrenched provisions on the Supreme Court. Thus in all these cases, the Court upheld decisions of preventive detentions, and therefore the case of Makhan Singh is an example of such an instance.
In the Supreme Court of India
|Citation||1952 AIR 27 1952 SCR 368|
|Respondent||State Of Punjab(And Connected Appeals)|
|Bench||Mr. Justice P.B. Gajendragadkar,|
Mr. Justice A. K. Sarkar,
Mr. Justice K. Subba Rao,
Mr. Justice K. N. Wanchoo,
Mr. Justice M. Hidayatullah, Mr. Justice K. C. Das Gupta, and Mr. Justice C. Shah
|Relevant Acts||Constitution of India, 1950, Articles 32, 226, 352, 358 and 359, Detention under Defence of India Act and Defence of India Rules, Application for release under Section 491, Code of Criminal Procedure (Act V of 1898)-|
Facts of the case
- Following the Chinese aggression on 8 September 1962, the President had declared a national emergency in India under Article 352 of the Constitution on 26 October 1962.
- The Defence of India Ordinance 1962 (Number 4 of 1962) was also promulgated on this day.
- An ordinance was promulgated on 3 November 1962 that suspended the rights of citizens of India to move any Court for the enforcement of the rights under Article 21 and 22 of the Constitution for the time during which proclamation of emergency issued on 26 October 1962 would be in force; under Article 359(1).
- The amendment of the Presidential order passed on 11 November, also extended this suspension of the right to move the Court to Article 14 of the Constitution,
- The appellants were detained under Rule 30(1)(b).
- In total, there are 26 criminal appeals, nine against the decision of the Punjab High Court, and 17 against the decision of the Bombay High Court.
- All the appellants were detenues who had been detained by the Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by the Defence of India Ordinance.
- They had applied to the Punjab High Court and the Bombay High Court under Section 491 (1)(b) of the Code of Criminal Procedure(Cr.p.c.) and alleged that they had been illegally detained.
- Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act,of 1962 (No. 51 of 1962) and Rule 30(1)(b) under which they have been detained were Constitutionally invalid, because they contravened their fundamental rights under Articles 14, 21 and 22(4), (5) & (7) of the Constitution, and so, they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty.
- These petitions had been dismissed on the ground that the Presidential Order which has been issued under Art. 359 of the Constitution creates a bar which precludes them from moving the Court under s. 491(1)(b) Cr. P. C.
- The High Court of Allahabad in a similar case had favoured the detenues, and it was the difference of opinion in the Bombay High Court and Punjab High Court that lead to the formation of the Special Bench for the appeal.
Suspension of provisions of Article 19 during emergencies. While a Proclamation of Emergency under Article 352 is in operation, nothing in article 19 shall restrict the powers of the State defined in Part III to frame any law or to draw any executive action which State would but for the provisions contained in that Part be competent to frame or to draw, but any law so made shall, to the extent of the incompetency, cease to possess effect as soon as Proclamation ceases, to operate, except as respects things done or omitted to be done before the law so ceases to have an effect.
- 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 is also mentioned in the order and every proceeding pending in any court for the enforcement of the rights so mentioned shall remain suspended for the time during which the Proclamation is in effect or for such shorter period as could also be laid out in the order.
- Any order made as aforesaid may extend to the whole or any part of the territory of India.
Section 491(l)(b) of the Code of Criminal Procedure
Any High Court may, whenever it deems fit, direct that a person illegally detained in public or private custody within such limits be set at liberty.
- What was the true scope and effect of a Presidential Order issued under Article 359(l)?
- What is the nature of the proceedings which are barred by the Presidential Order issued under Article 359(1)?
- Did the bar created by the Presidential Order operate in respect of applications for habeas corpus made by detainees, not under Article 226 of the Constitution, but section 491 of the Criminal Procedure Code?
Since the object of Art. 359(1) is to suspend the rights of the citizens to move to any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the order is in operation and may be revived when the said Order ceases to be operative, and fresh proceedings cannot be taken by a citizen after the Order has been issued, because the Order takes away right to move any court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order. If a fresh proceeding falling within the mischief of Art. 359(1) and the Presidential Order issued under it is instituted after the Order has been issued, it will have to be dismissed as being incompetent.
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 should be construed to mean the right to move the Supreme Court which has been guaranteed by Art. 32(1).
The right of which a citizen can be deprived of under Art. 359(1) is the right to move the Supreme Court, and so, his case is that even in regard to fundamental rights specified in the Presidential Order, a citizen is entitled to ask for relief from the High Court under Art. 226 because of the right to move the High Court flowing from Art. 226 does not fall within the mischief of Art. 359(1).
In this connection, it was attempted to be argued that the power of the High Court to issue writs or orders specified in Art. 226(1) is a discretionary power and as such, no citizen can claim to have a right to move the High Court in that behalf, and so, it was suggested that the proceedings contemplated by Art. 226(1) are outside the purview of Art. 359(1).
The next question to consider is the nature of the proceedings which are barred by the Presidential Order issued under Art. 359(1). They are proceedings taken by citizens for the enforcement of such rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relied on the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred.
In determining the question on whether a specific proceeding falls within the mischief of the Presidential Order or not, what should be examined isn’t so much the form which the proceeding has taken or the words in which the relief is claimed, as the substance of the matter and consider whether before granting the relief claimed by the citizen, it might be necessary for the Court to enquire into the question whether any of his specified fundamental rights are contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights, that’s a proceeding which falls under Art. 359(1) and would, therefore, be hit by the Presidential Order issued under the said Article.
That takes us to the question as to whether proceedings taken by a citizen under s. 491(1)(b) are affected by Art. 359(1) and the Presidential Order issued under it. Section 491(1)(b), inter alia, provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty. It has been strenuously urged before us that the proceedings for obtaining directions of the nature of habeas corpus are taken under s. 491(1) (b) are outside Art. 359(1), and so, the Presidential Order cannot create a bar against a citizen asking the High Court to issue a writ in the nature of habeas corpus under the said provision.
There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once have been treated as a matter of Common Law has become a statutory right after 1923, and we have already seen it after s. 491 was introduced in the Cr.P.C.. It was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provisions of s. 491(1)(b) itself. It has, however, been suggested by the learned Attorney-General that just as the common law right to obtain a writ of habeas corpus became a statutory right in 1923, a part of the said statutory right has now become a part of the fundamental rights guaranteed by the Constitution, and so, after the Constitution came into force, whenever, a detenu claims to be released from illegal or improper detention, his claim can, in some cases, be sustained on the ground that illegal or improper detention affects his fundamental rights guaranteed by Arts. 19, or 21 or 23 as the case may be. It is no doubt urged that under s. 491(1)(b) a stranger can apply for the release of a detenu improperly or illegally detained, or the Court itself can act suo motu.
The Court thus considered whether Article 359 of the Constitution was to be so construed on to empower the President to suspend “all actions which an individual may take under a statute or common law, if he seeks thereby to protect his liberty against unlawful encroachment by the state or its officers” Was the effect of the Presidential Order confined to the Constitutional remedies guaranteed by Articles 32 and 226, or would the Order also bar remedies which are conferred by ordinary statutes, such as by section 49l of the Code of Criminal Procedure?
The Supreme Court conceded that the right to claim relief under the Code was a right which was distinct and separate from that conferred by Articles 32 and 226 of the Constitution. It was stressed that what was to be examined was not the technical procedural form in which the action was initiated or not whether it was by a writ petition under Article 32 or Article 226 of the Constitution, or by proceedings sanctioned by ordinary statue, but rather that it was the “substance of the matter” which was decisive. Therefore, proceedings taken under Section 491 of the Criminal Procedure Code would be on the same footing as writ petitions under the Constitution and would, with respect to pleas based on rights conferred by the Articles specified in that Presidential Order, be equally liable to attract the procedural bar.”
The true test to determine whether a particular proceeding is barred is to examine the substance and not the form. In the words of Justice Gajendragadkar:
“ In determining the question on to whether a specific proceeding falls within the mischief of the Presidential Order or not, what should be examined isn’t so much the form which the proceeding has taken or the words in which the relief is claimed, as the substance of the matter…before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights are contravened. If any relief can’t be granted to the citizen without determining the question of the alleged infringement of the fundamental rights, that’s a proceeding which falls under Art. 359(1) and would, therefore, be hit by the Presidential Order issued under the said Article. The sweep of Art. 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights.”
Justice Subba Rao dissented and argued that section 491 of the Code; though remedial in form, postulates the existence of the substantive right. He identified that substantive right as a common law principle that no person can be deprived of his or her liberty except in the manner prescribed by law. Justice Subba Rao supported his conclusion as to the availability of a remedy under section 491 by classifying the High Court’s power under the Code as purely discretionary, and hence distinct from the ‘right’ to move a court as guaranteed by Articles 32 and 226. Since he conceded to the Legislature the power to take away this substantive right, Justice Subba Rao did not derive the procedural right in question from an implied Constitutional rule of law or principle of legality.
In the absence of a principle of legality which transcends the specific Fundamental Rights conferred by Part III of the Constitution, the opinion expressed by Justice Subba Rao is unconvincing. Whether the jurisdiction of the Court is invoked by a Constitutional provision, such as Article 32 or Article 226, or invoked by reliance upon an ordinary statute, does not, in itself affect the content of the substantive right sought to be asserted. The question of an alternate jurisdictional basis is irrelevant if the position regarding the legal procedure to enforce it is unclear.
Concerning the general scope and legal consequence of a Presidential Order under Article 359(l), the Supreme Court, in Makhan Singh, observed that its legal effect was to constitute “a sort of moratorium or blanket ban” against the initiation, or continuation, of any legal action which ‘in substance sought to enforce a Fundamental Right specified in the Presidential Order. On this interpretation of Article 359, the Supreme Court unanimously” concluded that a Presidential Order could never operate as a bar to proceedings in which executive action is attacked on grounds which are not relatable to the specified Fundamental Rights. Speaking on behalf of six of the seven judges of the Bench, Justice Gajendragadltar identified several pleas that weren’t barred by the Presidential Order. These concerned the enforceability of rights aside from those laid out in the Presidential Order infringement by the detaining authority of mandatory provisions of the detention legislation; mala fides.
- The detenu Makhan Singh Tarsikka whose habeas corpus petition has been dismissed by the Punjab High Court has brought this appeal before us by special leave. It appears that on October 22, 1962, F. I. R. was filed at the Police Station, Jandiale, alleging that offences under Ss. 307, 324, 364 and 367 I. P. C. had been committed by certain persons including the appellant. In pursuance of the investigation which commenced on receipt of the said F.I.R., the appellant was arrested on October 25, 1962. On October 26, 1962, Emergency was declared by the President. On November 1, 1962, the appellant was transferred to judicial custody of the Sub-Divisional Magistrate, Amritsar. Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to 19th Nov. 1962. On November 20, 1962, an order of detention was passed against the appellant under Rule 30(1) (b) of the Defence of India Rules, 1962 (hereinafter called the ‘Rules’ ) This order was served on the appellant on November 21, 1962, and it appears he was removed to the jail at Hissar. On January 30, 1963, he was brought back to Amritsar, and on February 9, 1963, he filed the present writ petition.
- In his petition which was filed by the appellant, the main allegation which he made was challenging the validity of his detention was that the grounds set up in the order of detention were “very vague, concocted and totally false”. The detention order had stated that the appellant was detained because he was found to be “indulging in activities prejudicial to the Defence of India and Civil Defence by making propagandas against joining the armed and civil defence forces and by urging peopled not to contribute to the National Defence Fund”. The order added that having reference to his activities, it had been thought necessary to detain him to stop him from carrying on the said prejudicial activities.
- On March 4, 1963, the appellant made an additional affidavit in which he urged that the fact that the deponent was in confinement before the declaration of emergency on October 26, 1962, and the Chinese invasion, clearly showed that the allegations against the deponent were false and concocted. By this supplementary affidavit, the appellant furnished a further ground in support of his original plea that the grounds on which his detention had been ordered were false and concocted.
- The object of Art. 359(1) is to suspend the rights of the citizens to move to any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the order is in operation and may be revived when the said Order ceases to be operative, and fresh proceedings can’t be taken by a citizen after the Order has been issued.
- Section 491(1) (b), inter alia, provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty.
- Section 491(1)(b) a stranger can apply for the release of a detenu improperly or illegally detained, or the Court itself can act suo motu.
References and Citations