In the Supreme Court of India
|Name of the Case||Ghulam Sarwar vs. Union of India|
|Citation||1967 AIR 1335|
|Year of the Case||15/12/1966|
|Respondent||Union of India|
|Bench/Judges||RAO, K. SUBBA (CJ)HIDAYATULLAH, M.SIKRI, S.M.BACHAWAT, R.S.SHELAT, J.M.|
|Acts Involved||Indian Constitution, Foreigners Act, Customs Act|
|Important Sections||Article 14, Article 359 (1), Article 32|
This case talks about two contentions which were correct. This was one case among the whole lot of cases which got the judges to question which opinion should be favoured. On one hand is the Presidents order under Article 359 (1) which suspends the right of the citizens to move any court for the enforcement of their fundamental right during a National Emergency, and on the other hand is a petitioner who has been refused to be heard on the principle of Res Judicata. This is one of the important cases as we can take a note of two provisions which carry an equivalent load of importance clashing.
This case showcases the importance of the enforcement of Part III of the constitution even during the proclamation of Article 359 (1) that has been ordered by the President during National Emergency. A petitioner who during the enforcement of Article 359 (1) was tried and imprisoned, files a case which was dismissed on the grounds of Res Judicata. This case gives us an in depth knowledge and awareness on what these two provisions have to play in such a scenario. On one hand, it is an order that’s been passed by the President of India who is considered to be the superior and has ultimate powers. On the other hand, an individual who has the right to raise questions but has been ignored on the mere contention that he may not move courts due to the enforcement of Article 359 (1) by the President.
In October 1962 the President of India issued a proclamation of National Emergency under Article 359 (1) of the Constitution. There were two orders under Article 359 (1) which were issued by the President and subsequently amended. The first order that was amended was the rights that were provided to any foreigner to move any court for the enforcement of his rights conferred in Article 14, 21 and 22 as it was suspended during National Emergency. The second order that was amended was the right to move any court by any person for enforcing their rights, which were conferred in Article 14, 21 and 22. On the 26th of October 1962, it was said that if any person has been deprived of any such right under the Defence of India Ordinance, 1962 or any rule or order made thereunder, it will be seen that the order dated 30-10-1962 was confined to foreigners and the order dated 3-11-1962 was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962.
- In the year 1964, Ghulam Sarwar (Petitioner) a Pakistani was arrested in New Delhi by the Customs Authorities under Section 135 of the Indian Customs Act,1962 for unlawfully entering the Indian Jurisdiction. On the 9th of May 1964 he was enlarged on bail, but a year later on the 18th of May 1965 when he was being released simultaneously a detention order was served against him by the Central Government under Section 3(2)(g) of the Foreigners Act, as there was an ongoing police investigation with respect to smuggling gold to which he was alleged to be a part of.
- On the 29th of May 1965, he was convicted for an offence under Customs Act by the Magistrate First-Class, Delhi. He was sentenced to undergo a rigorous imprisonment for a period of 9 months and also deposit a fine of Rupees 2,000/-. Before the term of his rigorous imprisonment expired, the petitioner filed a writ of Habeas Corpus in the Circuit Bench of the Punjab High Court at Delhi, challenging his detention. This petition of his was dismissed on the grounds of merits by Justice Khanna as the Constitutional validity of Section 3 (2) (g) of the Foreigners Act was not mooted hence, the learned Judge opined that in the absence of any mala fide its validity could not be questioned.
- On the 12th of May 1966, the petitioner filed a fresh writ petition of Habeas Corpus against the Union of India (Respondents) under Article 32 of the Constitution directing them to set him at liberty on the ground that, the provisions of the Foreigners Act was invalid.
- Whether Article 359 (1) of the Constitution is valid
- Whether Article 359 (1) infringes the provisions of Article 14 of the Constitution
- Whether the detention under Section 3 of the Foreigners Act 1946 is valid
- Section 3 of the Foreigners Act
- Section 135 of the Indian Customs Act, 1962
- Section 3(2)(g) of the Foreigners Act
- Article 32 of the Constitution
The court in this case, relied on 2 cases namely- Daryao vs. The State of U.P1 and Sree Mohan, Chowdhury vs. The Chief Commission, Union Territory of Tripura2.
In Daryao vs. The State of U.P where after hearing the matter the High court dismissed a writ petition under Article 226 of the constitution on the grounds that no fundamental right was proved or contravened and that its contravention was constitutionally justified.
In the next case that is, Sree Mohan, Chowdhury vs. The Chief Commission, Union Territory of Tripura, it was held that a court may investigate the validity of an ordinance of a particular Act only if the person moving the court has a locus standi. If he does not have a Locus Standi, the court can refuse to entertain his petition which questions the vires of a particular Legislation. The court further said that, when the President passed an order under the provisions of Article 359(1)3 of the constitution, the petitioner has lost his locus standi to move this court during the emergency. That being so, the petition is not maintainable.
The court held that, for the reasons listed by the learned Chief Justice the Presidents order issued under Article 359 (1) is neither discriminatory nor violative of Article 14 of the constitution. Therefore, the petition was dismissed
In this case we can see that, two major provisions contravene each other, namely Article 359 (1) and Article 14. We can here note a clear distinction deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by the President in exercise of a power conferred on him under a constitutional provision. If we compare Article 358 and Article 359, we can clearly justify distinction. This case mainly highlights the point that, an order passed by the President under Article 359 (1) which suspends the right to move this Court for the enforcement of any right conferred by Part III necessarily abridges the right conferred by Article 32 of the Constitution. If we consider that the Presidents order under Article 359 (1) is a law within the meaning of Article 13 (2), we can then also consider that the President can not make a valid order under Article 359 (1).
In my opinion though the Presidents order under Article 359 (1) is a law within the meaning of Article 13(2) and can he pronounced invalid on the ground that, it violates the provision of Article 14(1). The court took the right decision as it is a necessary rule to put a halt on few activities. During a period such as the National Emergency, imposing restrictions is very essential as it not only ensures the safety of the citizens but also brings out the sensitivity of the present scenario. Therefore, I agree with the learned judges to have come to such a conclusion.
On the contrary, giving an opportunity to an individual to be heard is an important principle mentioned in the Rule of Law and the Natural Justice. Which can not be suspended during any situation. As when an individual requires help, turns for help to the court of law with the opinion to be provided with justice. Therefore dismissing his petition on the mere contention that his petition has been adjudicated by a competent court or that during the proclamation of Emergency, can not be considered valid itself is invalid.
The learned Judge and the learned Chief Justice were therefore of the right opinion that both these contentions- 1. Contentions raised by the Petitioner and 2. Presidents order under Article 359 (1) are both correct which brought them at a position where they could not approve either of the contentions. As both of them are equally correct and important. The latter one though, carried more weightage as it is a law within Article 13(2) of the Constitution, and during an emergency restricting the rights of an individual also plays a major role.
- 1962 SCR (1) 574
- 1964 SCR (3) 442
- (1) 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 (except Article 20 and 21) 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
(1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III (except Article 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions containing in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(1B) Nothing in clause ( 1A ) shall apply
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital