MAKHAN SINGH versus STATE OF PUNJAB

RAo J.-I have had the advantage of reading the Judgment of my learned brother, Gajendragadkar J. I regret my inability to agree with him wholly. I agree with his conclusion in regard to the applicability of Art. 359 of the Constitution to a right to move a court both under Art. 32 ( 1) and Art· 226 thereof, but not with his conclusion in regard to the exercise of power by the High Court under s. 491 of the Code of Criminal Procedure.

p. 841

These appeals raise questions of great importance touching apparently conflicting, but really harmonious, concepts of individual liberty and security of the State, for the former cannot exist without the latter. My only justification for a separate treatment of the subject even on questions on which there is general agreement is my conviction that on important questions I should express my thoughts in my own way. Broadly, two questions are posed for the consideration of this Court, namely (i) whether s. 3(2) (15) (i) of the Defence of India Act, 1%2 (51 of 1%2), hereinafter called the Act, and r. 30( 1) (b) of the Rules made in exercise of the power conferred under the Act are constitutionally void; and (ii) whether the Order made by the President in exercise of the power conferred on him under Art. 359(1) of the Constitution would be a

p. 841

-( {1964] 3 S.C.R. 442. 34-2 c.

p. 841

~ar against the maintainability of any action in any court to question the validity of the detention order made under the Act.

p. 842

I shall deal with the two questions in the said order. Before dealing with the first question it would be convenient to quote the impugned provisions of the Act.

p. 842

&ction 3.-(1) The Central Government may by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence; the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.

p. 842

(2) Without prejudice to the generality of the powers conferred by sub-section (1), the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters, namely :- •

p. 842

( 15) notwithstanding anything m any other law for the time being in force,- ( i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manner prejudical to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial

p. 842

manner, * * * * * * * * * Rule 30.-( 1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may, make an order- *****.* (b) directing that he be detained.

pp. 842–843

Rule 30A.-(2) Everv detention order shall be reviewed in accordance with the provisions hereinafter contained.

p. 843

(3) A detention order made by the Central Government or the State Government or the Administrator shall be reviewed by the Central Government or the State Government or the Administrator, as the case may be.

p. 843

( 4) A detention order made by an officer (who shall in no case be lower in rank than that of a District Magistrate) empowered by the State Government or the Administrator shall be reviewed :- (a) in the case of an order made by an officer empowered by the State Government, by a reviewing authority consisting of any such two officers from among the following officers of that Government, that is to say, the Chief Secretary, a member of the Board of Revenue, a Financial Commissioner and a Commissioner of a Division, as may be specified by that Government by notification in

p. 843

the Official Gazette ; (b) in the case of an order made by an officer empowered by the Administrator, by the Administrator

p. 843

himself. Under the said provisions the Central Government or the State Government or an officer on whom the power to detain is delegated can direct the detention of any person if the detaining authority is satisfied that his detention is necessary for one or other of the reasons mentioned in r. 30. No grounds of detention need be served upon the detenu; no opportunity need be given to him 'to make representations or establish his innocence. The period of detention can be indefinite. The Central Government or the State Government or the Administrator of a Union Territory, as the case may be, is authorised to review the order of detention made by them. So too, a detention order made by an officer empowered by the State Government in that behalf can be reviewed by one or other of the officers mentioned in r. 30A (4).

pp. 843–844

It is contended that the said provisions infringe Art. 22( 4) and (5) of the Constitution and, therefore, void. This Court in Deepchand v. The State of Uttar Pradesh(') laid down the effect of a law made in infringement of fun- . damental . rights; and observed :

p. 844

"The result of the aforesaid discussion may be summarized in the following propositions; (i) whether the Constitution affirmatively confers powers on the legislature to make laws subject-wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislatiTe power; (ii) the Constitution in express terms make~ the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constituion and th.reby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that. power would be ab initio void wholly or to the extent of the contravention, ~s

p. 844

the case may be; .................... " This view was accepted by a later decision of this Court in Mahandra Lal v. State of U.P.(

p. 844

It is, therefore, manifest that if the Act and the rules framed thereunder infringed the provisions of Art. 22(4) and (5) of the Constitution, they would be ab initio void ; they would be stillborn law and any detention made thereunder would be an illegal detention. Articles 21 and 22 enshrine fundamental rights relating to personal liberty. Clauses ( 4) to ( 6) of Art. 22 specifically deal with preventive detention. This Court has held in A. K. Go pal an v. State of Madras(') that the word "law" in Art. 21 means State-made law or enacted law and that Art. 22 lays down only the minimum procedural conditions which such a 1959] Supp. 2 S.C.R. 8, 40. A.LR. 1963 S.C. 1019. (') [ 1950] S.C.R. 88. a statutory law cannot infringe in the matter of preventive detention. The minimum conditions are as follows: ( 1) Parliament may make a law prescribing the maximum period for which any person may be detained ; (2) he shall not be detained for a period more than 3 months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention; and (3) the authority ,making the order shall communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making representations against the order. At the same time cl. (7) enables Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board. Clause ( 6) of Art. 22 enables an authority not to disclose facts to the detenu which it considers to be against the public interest to disclose. While els. ( 4) to ( 6) of Art. 22 provide for the minimum safeguards for a detenu in the matter of preventive detention, cl. (7) removes them enabling Parliament to make a law for preventive detention ignoring practically the said safeguards. The only outstanding safeguard, therefore, is that Parliament can only make . a law in derogation of the said safeguards by defining the circumstances under which and the class or classes of cases in which a person may be so detained. Parliament did not make such a law.

pp. 844–845

Neither the Act nor the rules made thereunder satisfy the conditions laid down in that clause. The Act and the rules do not provide for the maximum period of detention, for the communication to the detenu of the grounds of detention, for affording him an opportunity of making representations against his detention, or for an Advisory Board consisting of persons with the requisite qualifications. The power to review given to the detaining authority cannot conceivably satisfy the condition of an Advisory Board provided for under cl. ( 4) (a) of Art. 22. It is, therefore, a clear case of Parliament making a law in direct infringment of the relevant provisions of Art. 22 of the Constitution, and therefore the law so made is void under the said Article.

p. 845

In this context a relevant aspect of the argument advanced by the learned Attorney-General may be noticed. He contends that, on a true construction of Art. 359(1) of the Constitution, if the requisite order is made by the President, a law can be made in infringement of Art. 22 of the Constitution. Under Art. 359, the President may by order declare tmt 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 shall remain suspendeq for the period during which a Proclamation of Emergency ~ in force or for such shorter period as may be specified in the order. It is contended that when remedy is suspended in respect of infringement of Art. 22, the right thereunder also falls with it. It is said that right and remedy are reciprocal; and if there cannot be a right without a remedy, there cannot also be a remedy without a right. In "Salmond on Jurisprudence", 11th Edn., the following interesting passage is found, at p. 531, under the heading "Ubi /us !bi Remedi11m";

p. 846

"Whenever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize. In early systems this is far from being the case. We there find remedies and forms of action determining rights than rights determining remedies. The maxim

p. 846

of primitive law is rather, Ubi remedium ibi jus." I understand this passage to mean that a right pertains to the substantive law and the remedy, to procedural law; that where a right is provided by a statute a remedy, though not expressly provided for, may necessarily be implied. But the conver~, though obtained in primitive law, cannot be invoked in modern times. To put it in other words, the suspension of a remedy cannot abrogate the right itself. Indeed, a comparative study of Arts. 358 and 359 of the Constitution indicates that it could not have been the intention of the makers of the Constitution, for Art. 3'58 expressly suspends the right whereas Art. 359 suspends the remedy. If the contention of the -learned Attorney General be accepted, both have the same effect: if that was the intention of the makers of the Constitution, they would not have expressed themselves in different ways in the two articles. Where they intended to suspend the right, they expressly said so, and where they intended only to suspend the remedy, they stated so. We cannot, therefore, accept this contention.

pp. 846–847

At this stage I may also notice the argument of the learned Attorney General that Art. 359, by enabling the President to suspend the right to move for the enforcement of the fundamental rights mentioned therein, impliedly permitted Parliament to make laws in violation of those fundamental rights in respect whereof the right to move the court is suspended. I cannot appreciate this argument. It is one thing to suggest that in view of the amplitude of the phraseology used in Art. 359", the right to move for the enforcement of fundamental rights infringed by a void law, even deliberately made by Parliament, is suspended but it is a different thing to visualize a situation when the Constitution permitted Parliament under the shelter of executive fiat to make void law•. Indeed, a comparison of Art. 358 and Art. 359-I shall deal with them in detail later on-indicates the contrary. I cannot for a moment attribute to the august body, the Parliament, the intention to make solemnly void laws. It may have made the present impugned Act bona fide thinking that it is sanctioned by the provisions of the ConstitutiQn. Whatever it may be, the result is, we have now a void Act on the statute book and under that Act the appellants before us have been detained illegally. To use the felicitous language of Lord Atkin, in this country "amid the clash of arms, the laws are not silent; they may be changed, but they speak the same language in war as in peace". The tendency to ignore the rule of law is contagious, and, if our Parliament, which unwittingly made a void law, not only a!lows it to remain on the statute book, but also permits it to be ;idministered by the executive, the contagion may spread to the people, and the habit of lawlessness, like other habits, dies hard. Though it is not my province, I venture to suggest, if I may, that the Act can be amended in conformity with our Constitution without it losing its effectiveness.

p. 847

This leads m to the question whether the appellants, who are illegally detained, can move this Court under Art. 32 of the Constitution or the High Court under Art. 226 thereof or under s. 491 of the Code of Criminal Procedure, hereinafter called the Code. It would be con venient at this stage to read the relevant provisions of the Constitution.

pp. 847–848

Article 32.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. " "

p. 848

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

p. 848

( 4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

p. 848

Article. 226 (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in reiation to which it exercises jurisdiction, to issue to any person or authority, including in !appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

p. 848

(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

p. 848

Article 358. While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the· Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

pp. 848–849

Artie!~ 359 (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 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.

p. 849

Article 33 confers power on Parliament to plodify the rights conferred by Part III in their application to Armed Forces or the Forces charged with the maintenance of public order; Art. 34 enables Parliament to impose restrictions on the rights conferred by Part III while martial law is in force in any area.

p. 849

The contention of learned counsel for the appellants on the construction of the said provisions may be classified under the following heads: (1) Art. 358 permits the State to make laws only in infringement of Art. 19 of the Constitution, and Art. 359 suspends only the right to move the enforcement of the fundamental rights specified in the President's Order and, therefore, Art. 359 cannot be so construed as to enlarge the legislative power of Parliament beyond the limits sanctioned by Art. 358 and, therefore, it should be confined only to executive infringements of the said rights. (Z) Article 359 does not permit the executive to commit fraud on the Constitution by doing indirectly what Parliament cannot do directly under Art. 358 and Art. 13(2) of the Constitution. (3) For invoking Art. 359 two conditions must be complied with, namely, (i) the party shall have a right to move any court, and (ii) only for the enforcement of the rights conferred by Part III. Such a right to move for such a relief is expressly conferred by the Constitution under Art. 32. Therefore, the President's order under Art. 359 would only suspend the right to move under Art. 32 and not for approaching the Court under Art. 226 of the Constitution. In any view, those words are inappropriate to a pre-existing .i:atutory right under s. 491 of the Code.

p. 849

To appreciate the contentions from a correct perspective it is necessary at the outset to notice the nature of the fundamental rights enshrined in the Constitution and the remedy or remedies provided for their enforcement. It would be pedantic to go into the question whether fundamental rights provided for under our Constitution are natural rights or primordial rights : whatever their origin might have been and from whatever source they might have been extracted, they are enshrined in our Constitution in Part III and described as fundamental rights. The constitution declared under Art. 13(2) that the State shall not make any law taking away or abridging the said rights and. any law made in contravention of this clause shall be void to the extent of the contravention. After declaring such a law void, it proceeds to provide for the mode of enforcement of the said rights. Article 32 ( 1) makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the said rights a guaranteed right. Appropriate proceedings are described in cl. (2) thereof, that is fo say, a person can move the 'aid Court for directions, orders, or writs in the nature described thereunder for the enforcement of any of the said rights. The right to move, therefore, is regulated by the procedure prescribed thereunder. Article 226, though it does not find a place in Part III of the Constitution, confers a power on every High Court throughout the territories in relation to which it exercises jurisdiction to issue such directions, orders, or writs in the nature described thereunder for the enforcement of any of the rights conferred by Part III. There is a material difference between Art. 32 and Art. 226 of the Constitution, namely, while in Art. 32 the right to move the court is guaranteed, under Art. 226 no such guarantee is given. But a fair construction of the provisions of Art. 226 indicates that the right to move, though not guaranteed, is necessarily implied therein. As I have pointed out, under Art. 32 the right to move the Court is given a practical content by the provision indicating the different modes open to the person who has the said right to approach the Supreme Court. Article 226 employs the same procedure for approaching ·the High Court and that procedure must necessarily be for the exercise of the right to move that court. When a power is conferred upon the High Court and a procedure is prescribed for a party to approach that court, it is reasonable to imply that the person has a right to move that court in the manner prescribed thereunder. The only difference between Art. 32 and Art. 226 is that the Supreme Court cannot say, if it is moved in the manner prescribed, that it will not decide on merits, but the High Court, in exercise of its jurisdiction can do so. The decision on merits is left to its discretion, though the exercise of that discretion is regulated by convention and precedent. Further, Art. 32(3) also enables Parliament to make a law empowering any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under cl. (2) thereof. One thing to be noticed is that Parliament can only empower any other court to exercise any of the powers exercisable under cl. (2) ; it cannot confer the guaranteed right mentioned in cl. (1) on any person to move that court. That is to say, the court or courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights. To put it shortly, no person will have a guaranteed right to move any such other court for the enforcement of fundamental rights. A discretionary jurisdiction similar to that of the High Court can only be conferred on them. For the same reason given in the case of the High Court, an aggrieved party will also have a right to move those courts in the manner prescribed.

pp. 850–851

This analysis leads us to the following position : Under the Constitution every person has a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts or any other court or courts constituted by Parliament by law in the manner prescribed t.e., by one or other of the procedural writs or directions or orders described thereunder.

p. 851

With this background let me have a close look at the provisions of Art. 359. The expressions used in Art. 3'59 are clear and unambiguous. Three expressions stand out in bold relief, namely, (i) "right to moye'', (ii) "any Coun'', and (iii) "for the enforcement of such of the rights conferred by Part III". "Any Court" implies more than one court, but it cannot obviously be any court in India, for it must be a court where a person has a right to move for the enforcement of the fundamental rights. It can, therefore, be only the Supreme Court, High Court or the courts or 'courts constituted by Parliament under Art. 32(3). If the contention of learned counsel for the appellants be accepted, the expi:ession "court" should be confined to the Supreme Court. But the Article does not say either Supreme Court or that the right to move is the guaranteed one under Art. 32(1). The next question is, what do the words "right to move" mean? The right to move is qualified by the expression "for the enforcement of such of the rights conferred by Part III". Therefore, the right to move must be a right to move the Supreme Court or the High Court in the manner prescribed by Art. 32(2) or Art. 226(1) of the Constitution for the enforcement of the fundamental rights. The words in the second limb of the Article viz., that "all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended" only relate to the proceedings instituted in exercise of the said right : they do not throw any light on the scope of the "right to move". This construction gives full meaning to every expression used in the Article. If so construed, it can only mean that the temporary bar that can be imposed by an order of the President is not confined only to the guaranteed right of a p,erson to move the Supreme Court for the enforcement of his fundamental rights, but also extends to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of the fundamental rights as mentioned in the order. I would, therefore, hold that the President's order under Art. 359 suspending the right to move any court in respect of specified fundamental rights includes not only the right to move under Art.· 32 but also that under Art. 226.

pp. 851–852

The more difficult question is whether Art. 359 can be so construed as to empower the President to suspend all actions which a person may take under a statute or common law, if he seeks thereby to protect his liberty against unlawful encroachment by State or its of_fic~rs. To put it in other words, can a person, who 1s 11\egaUy detained under a void law, approach the High Court under s. 491 of the Code or file a suit in a civil court for damages for illegal confinement or take any other legal proceedings open to him? Learned Attorney General contends that "any court" in Art. 359 means any court in India and that th'e expression "enforcement of fundamental rights" implies any relief asked for by a party if the granting of such relief involves directly or indirectly a decision on the question whether any of the fundamental rights specified in the President's order has been infringed. This argument, if I may say so, completely ignores the scheme of the Constitution. Under the Constitution, a person may have three kinds of rights, namely, (i) fundamental rights, (ii) constitutional rights, and (iii) statutory or common law rights. Under Art. 32(1) a person has a fundamental right to move the Supreme Court for enforcement of his fundamental rights; under Art. 226, a person has a constitutional right to move the High Court for the enforcement of the said rights. Parliament, by law, in exercise of its powers conferred on it under Art. 245, may confer a right on a person to move any court for a relief wider in scope than that provided by Art. 32 or Art. 226 of the Constitution. Though Parliament may not have power, except in the cases specified to circumscribe the fundamental rights enshrined in Part III, it can certainly make a law enlarging the content of the substantive and procedural rights of parties bevond those conferred by Part III. Under this category there may also be laws made by competent authority before the commencement of the Constitution, but continued under Art. 3n, which do not any way infringe the fundamental rights created by the Constitution. Section 491 of the Code is one of the pre-Constitution statutory provisions continued under Art. 372 of the Constitution. It does not in terms posit any right to move the High Court for the enforcement of fundamental rights. Therefore, the argument of the learned Attorney General involves considerable strain on the express language of Art. 359, for, he in effect asks us to equate the expression "a right to move for the enforcement of fundamental rights" with any relief asked for in any proceedings in any court, whether initiated at the instance of the party affected or not, or whether started suo motu by the· court, if it involves a decision on the question whether a particular law was void for the reason thoi.t it infringed the fundamental rights mentioned in the President's order. In support of this contention he presses on us to hold that in .days of stress and strain i.e., when there is a threat of war and consequently an emergency is declared, a court has to adopt the principle of "strained construction" which will achieve the object behind Art. 359 of the Constitution and the order issued by the President. I shall briefly examine the decisions cited by him to ascertain whether any such novel doctrine of construction of statutes exists.

pp. 852–854

Rex v. Halliday(') is a decision of the House of Lords made in '1917 i.e., during the First World War. Regulation 14B of the Defence of the Realm (Consolidation) Regulation, 1914, empowered the Secretary of State to order the internment of any person of hostile origin or associations, where on the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety or the defence of the realm. This regulation was authorized by the Defence of the Realm Consolidation Act, 1914, s. 1, sub-section 1. The House of Lords, by a majority, held that the Act conferred upon the King-In-Council power, during the continuance of the war, to issue regulations for securing the public safety and the defence of the realm and, therefore, the regulation was valid. It was urged there that no such restraint of personal liberty should be imposed except as a result of judicial enquiry. It was also contended that if the Legislature intended to interfere with personal liberty it should have provided for suspending the right of the subject as to the writ of heabeas corpus. The argument was negatived. Lord Atkin observed :

p. 854

"The subject retains every right which those statutes confer upon him to have tested and determined in a Court of law, by means of a writ of Habeas Corpu~, addressed to the person in whose custody he may be, the legality of the order or warrant by virtue of which he is given into or kept in that custody. If. the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or (') L.R. 1917 A.C. 272. interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it, if intra vires, do not infringe upon the Habeas Corpus Acts in any way whatever, to take away any rights conferred by Magna Charta, for the simple reason that the Act and these Orders become part of the law of the

pp. 854–855

land." This decision does not lay down any new rule of construction. Parliament is supreme in England. It its wisdom it did not take away the habeas corpus, but empowered the executive to issue regulations for public safety and defence of the nation. The regulation made did not exceed the power conferred by the Parliament. The House of Lords held that the detention was in accordance with law.

p. 855

Nor does the controversial decision in Liverside v. Sir fohn Anderson('), which was the subject of servere criticism in later years, lay down any such new rule of construction. There, the Secretary of State, acting in good faith under reg. lSB of the Defence (General) Regulations, 1939, made an order in which he recited that he had reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained. The validity of the detention turned upon the construction of the express provisions of reg. 18B of the said Regulations. In that regulation the expression used was "reasonable cause to believe any person to be of hostile origin". The House of Lords, by a majority, held that the expression meant that "the Secretary of State t~mks fit to be reasonable". There was a powerful dis.sent by Lord Atkin on the question of construction. With the correctness of the construction put upon by the majority on the said provision we are not concerned · but none of the learned law Lords laid down in thei; speeches any new rule of construction peculiar to war conditions. Viscount Maugham observed :

p. 855

''.My Lords, I think we should approach the constru.ct10n o'. reg. lSB of the Defence (General) Regu-

p. 855

lat10ns without any general presumption as to its -(1) L.R.!9-i2A.C. 2ois,-219, 251.

p. 855

meaning except the universal presumption, applicable to Orders in Council and other like instruments, that, if there is a reasonable doubt as to the meaning of the words used, we should prefer a construction which will carry into effect the plain intention of those responsible for the Order in Council rather

p. 856

than one which will defeat that intention." Lord Atkin, in his dissenting judgment, protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. Then he proceeded to observe :

p. 856

"The words have only one meaning. They are used with that mea~ning in statements of the common law and iri statutes. They have never been used in the

p. 856

sense now imputed to them." These observations by the dissenting Lord may at the most indicate that the majority in fact put a strained comtruction on the express words used in the regulation; but they do not show that they have laid down any such rule of construction. This is made clear by Lord Macnlillan when he stated:

p. 856

"In the first place, it is important to have in mind that the regulation in question is a war measure. This is not to say that the courts ought to adopt in wartime canons of construction different from tho~e which they follow in peace time. The fact that the nation is at war is no justification for any relaxation of the vigilance of the courts in seeing that the bw is duly observed, especially in a matter so fundamental as the liberty of the subject-rather the contrary. But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure. The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or st:i.tutory regulations in peace time as

pp. 856–857

well as in war time." These observations should be understood in the background of the earlier observation :

p. 857

"I do not agree that the critical phrase in the context in which I find it is susceptible only of one meaning, namely that for which the appellant contends. Were it so it would be strange that several learned Judges should have found it to possess quite a difl'er-

p. 857

ent meamng. . " This judgment, therefore, is no authority for the position for which it is relied upon. The decision in substance says that the rule of construction of a statute is the same both in peace time and in war time and that when there is :i.n ambiguity in the expressions used, the court may give such meaning to the words used which arc capable of bearing that meaning as would promote rather than defeat the object of the legislation. Indeed, the Privy Council, in Nakkuda Ali v. Jayaratna('), confined the interpretation put upon reg. 18B of the Defence (General) Regulations, 1939, by a majority of the House of Lords to the particular cricumstanccs of that case :i.nd they did not accept that construction when similar words were used in the Regulation 62 of the Defence (Control of Textiles) Regulations, 1945. I c:i.nnot, therefore, hold that the said decisions suggested a new rule of construction peculiar to war measures. The rules of construction are the same in war time as well as in peace time. The fundamental rule of construction is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself. Where the language is unambiguous, no more is necessary than to expound those words. in their natural and ordinary sense. But where the words are ambiguous and reasonably capable of bearing two meanings, the court may be justified in adopting that meaning which would further the intention of the Legislature rather than that which would defeat it.

p. 857

In the present case we are not dealing with a war measure, but a constitutional provision which was designed to govern the afl'airs of our country for all times so

p. 857

L.R. 1 (1951] A.C. 55-2 SC long the Constitution remains in force ; and it cannot certainly be strained to meet a passing phase in a country's life. A strained construction put upon a statutory provison to meet a particular emergency may be rectified by a subsequent enactment. But such a construction put upon a constitutional provision might entail serious consequences. Even if Liversidge's case(') had laid down a new rule of construction, that construction cannot be invoked in the case of a constitntional provision.

pp. 857–858

In Gibbons v. Ogden(') the following rule of construction of a constitutional provision is stated :

p. 858

"That which the words declare is the meaning of an instrument ; and neither Courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and ddiberate of all human writings those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay absolutely certain, that the people did not intend what the language they have employed in its natural signification, imports, before a Court will feel itself at liberty to depart from the plain reading of a constitutional pro- . . "

p. 858

v1s10n. No doubt a constitution should receive a fair, liberal and progressive construction so that the true objects of the instrument may be promoted ; but such a construction could not do violence to the natural meaning of the words used in particular provision of the Constitution.

p. 858

The relevant provisions of s. 491 of the Code read :

p. 858

(1) Any High Court may, whenever it thinks fit, . direct- (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the

p. 858

Court to be dealt with according to law ; (b) that a person illegally or improperly detained in public or priv"te custody within such limits be set

p. 858

at liberty ; * * * * * *

p. 858

Bearing in mind the said rules of construction, I ask myself the question whether the exercise of the power un- (1) [1942] A.C. 206. ( (1824) 6 L.Ed. 23. der s. 491 of the Code can be equated with a right to move the High Court to enforce such of the fundamental rights conferred by Part III of the Constitution as may be mentioned in the order of the President. It is nece~sary to ascertain the correct scope of the section to answer the question raised before us. The section is framed in wide terms and a discretionary power is conferred on the High Court to direct one or other of the things mentioned therein "whenever it thinks fit". Unlike Art. 32 and Art. 226, the exercise of the power is not channelled through well recognized procedural writs or orders. With the result the technicalities of such procedural writs do not govern or circumscribe the court's discretion. A short history of this section reinforces the said view. Originally, the Supreme Courts in India purported to exercise the power to issue a writ of habeas corpus which the Kings' Bench Division in England exercised. In 1861 Parliament passed Acts 24-25 Viet. Ch. 104 authorising the establishment of High Courts of Judicature in India. The Letters Patents issued under that Act in 1865 were expressly made subject to the legislative powers of the Governor-General in Council. The courts were given the same jurisdic,tion, power and authority which the Supreme Courts possessed but subject to the legislative power of the Governor-General in Council. Pursuant to the power so conferred, the Governor-General in Council passed successive Codes of Criminal Procedure in the years 1872, 1875, 1882 and 1898, and in 1923 by the Criminal Law (Amendment) Act, some of the provisions of the Code of 1898 were amended. The High Courts Act of 1861 authorized the Legislature, if it thought fit, to take away the powers which the High Courts exercised as successor to the Supreme Courts, and Acts of Legislatures passed in 1872 and subsequent years had taken away the power of the High Courts to issue prerogative writs ; and instead a statutory power precisely defined was conferred upon the High Courts. That statutory power underwent various changes and finally took the form of s. 491 of the Code, as at present it stands. The attempt to resuscitate the prerogative writs was rejected by the Calcutta High Court in Girindra Nath Banerjee v. Birendra Nath Pal(') and (1) (1927) 1.L.R. 54 Col. 727.

pp. 858–859

by the Madras High Court in' District Magistrate, Trivandrum v. Mammen Mappillai('). The Privy Council in Matten v. District. Magistrate, Trivandrum( approved the said decisions and hdd that the said Acts have taken away the power of the High Courts to issue prerogative writs and thereafter the only power left m the High Court was that conferred by the statute. By reason of Art. 372 of the Constitution, the Code of Criminal Procedure, including s. 491 thereof, continued be in force until altered, repealed or amended by the competent Legislature or other competent authority. Article 225 of the Constitution expressly preserved the High Courts' powers and jurisdiction, subject to other provisions thereof. Admittedly, Parliament has not made any law repealing s. 491 of the Code. The statutory power conferred on the High Courts under that section is not inconsistent either Art. 32 or with Art. 226 or with any other Article in Part III or any other Chapter of the Constitution. So, it cannot be held that s. 491 of the Code has been impliedly superseded by Art. 226 even to the extent .it empowers the High Court to give relief to persons illegally detained by the State. Now what is the scope of that section? Though s. 491 of the Code 1s remedial in form, it postulates the existence of the substantive right. In India, as in England, the rule of law was the accepted principle. No person can be deprived of his liberty except m the manner prescribed by the law of the land. If a person is illegally or improperly detained in violation of the law of the land, the High Court can direct his release "whenever it thinks fit" so to do. The section prima facie does not predicate a formal application ; nor does it insist that any particular person shall approach it. The phraseology usec\ 1s wide enough for the exercise of the power suo motu by the High Court. Nor does the section introduce an antithesis between the exercise of jurisdiction on application and that exercised suo motu; that is to say, even if an application was filed before the High Court and for one reason or other, no orders could. be passed thereon, either because of procedural defect or because it was not pressed, LL.R. 1939 Mad. 708. L.R. ( 1939) 66 IA. 222. nothing prevents the High Court from acting suo motu on the basis of the information brought to its notice. It is said that various High Courts framed rules regulating the procedure of the respective High Courts, but that fact is not much relevance in the matter of construing the section. Shortly stated, the High Court is given an absolute discretion to direct a person, who has been illegally detained, to be released, whenever that fact is brought to its notice through whatever source it may be. This jurisdiction existed long before the Constitution was made and long before the fundamental rights were conferred upon the people under the Constitution. The rights, substantive as well as procedural, conferred under Part III and Art. 226 on the one hand and under s. 491 of the Code on the other, are different. Under Arts. 32 and 226, an affected party can approach the Supreme Court or the High Court, as the case may be, only in the manner prescribed under Art. 32(2) or Art. 226 i.e., by way of writs and orders mentioned therein : he must ask the court for the enforcement of this fundamental right. The relief implies that he must establish that he has a fundamental right, that his fundamental right has been infringed by the State and, therefore, the Court should give the appropriate relief for the enforcement of that right. Both the right as well as the procedure are the creatures of the Constitution. Whereas s. 491 of the Code assumes the existence of the "rule of law" and confers a power on the High Court to direct persons in illegal detention to be set at liberty. It is not bound by any technical procedures envisaged by the Constitution. If a person approaches the High Court alleging that he or some other person has been illegally detained, the Court calls upon the detaining authority to sustain the validity of the action. The onus of proof lies on the custodian to establish that the person is detained under a legal process ; but if it fails to establish that the person is detained under law, the said person may be released. It is true that the detaining authority will have to satisfy the court. that the law under which the detention is made is a valid one. It may also be true that in scruti.iiizing the '(alidity of that law the court has to go into the question whether the law offrnds any of the fundamental rights mentioned in Part III of the Constitution. But that circumstance does not by any process of involved reasoning make the said proceeding one initiated in exercise of the right to move the High Court for the enforcement of the petitioner's fundamental right. The distinction between the two lies in the fact that one is an enforcement of a petitioner's fundamental right and the other, a decision on the unconstitutionality of a law because of its infringement of fundamental rights generally.

pp. 860–862

Further, the right and the relief have a technical and specific significance given to them by the Constitution. They cannot be equated with the mode of approach to the High Court under s. 491 of the Code or with the nature of ,the relief that can be given thereunder. The expression "whenever it thinks fit" confers an absolute discretion on the court to exercise its power thereunder or not to do so, having regard to the circumstances of each case. While the word "may" used in a statute was sometimes construed as imposing a duty on the authority concerned on whom a power is conferred to exercise the same if the circumstances necessitated its exercise, the expression "whenever it thinks fit" does not warrant any such limitation on its absolute discretion. Though ordinarily a High Court may safely be relied upon to exercise its powers when the liberty of a citizen is illegally violated by any authority, the said unlimited discretion certainly enables it in extraordinary circumstances to refuse to come to his rescue. The absolute discretionary jurisdiction conferred under s. 491 of the Code cannot be put on a par with the jurisdiction conferred under Art. 226 of the Constitution hedged in by constitutional limitations. A brief reference to decided cases on the scope of s. 491 of the Code will make my meaning clear.

p. 862

In Alam Khan v. The Crown('), the Full Bench of the Lahore High Court has defined the scope of s. 491 of the Code. Ram Lall, J., who spoke for the majority, stated, after quoting the relevant part of the section :

p. 862

"The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the (1947) I.L.R. 28 Lahore 274, 303. High Court on hearing the petition thinks fit to do so, may make an order that he be dealt with accord-

pp. 862–863

ing to law." In Ramji Lal v. The Crown('), a Full Bench decision of the East Punjab High Court, Mahajan, J., as he then was, defined the wide scope of the section thus :

p. 863

"Whatever may be the state of English law on the subject so far as section 491 of the Criminal Procedure Code is concerned it has been very widely worded and confers jurisdiction on the Court to issue directions whenever it thinks fit. The Court may be moved by the prisoner or by some relation of his, or it may act suo motu if it acquires knowledge that a certain person has been illegally detained. The mode and manner in which the Judge has to be satisfied cannot affect the jurisdiction conferred on him under

p. 863

section 491 of the Criminal Procedure Code." In King Emperor v. Vimlabai Deshpande('), a police officer made an arrest of the respondents under sub-rule 1 of r. 129 of the Defence of India Rules, 1939, which read : "Any police officer . . . . . . . . may arrest without warrant any person whom he reasonably suspects of having acted . . . . . . . . (a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." The Judicial Committee held that the burden was upon the police officer to prove to the satisfaction of a court before whom the arrest was challenged that he had reasonable grounds of suspicion and that if he failed to discharge that burden, an order made by the Provincial Government under sub-rule 4 of r. 129 for the temporary custody of the detenu was invalid. As the police officer failed to discharge the onus, the Privy Council held that the High Court was right in ordering the release of the person from custody under s. 491 of the Code of Criminal Procedure. This shows that when a person is detained by a police officer, the burden of establishing that the detention is valid is on him.

p. 863

These authorities well establish that s. 491 of the Code does not contemplate any right to move a court by any affected party, but the court can exercise the (') l.L.R. ( 19~9) II E.P. 28, 54.

p. 863

(1946) L.R. 73 I.A. IH.

p. 863

statutory power whenever it thinks fit, if the fact of illegal detention of a person is brought to its notice.

p. 864

The problem may be approached from a slightly different perspective. Three questions may be posed, namely, (1) has any person the right to move the High Court under s. 491 of the Code to enforce his fundamental right? (2) would it be necessary for a person detained or any other on his behalf to allege that the detenu has a fundamental right and that it has been infringed by State action and seek a relief for enforcement of that right? (3) would it be obligatory on the Court to enforce the right if the said right had been established? All the questions must be answered in the negative. Under s. 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the said relief. It is only a discretionary jurisdiction conceived as a check on arbitrary action.

p. 864

There is another aspect of the question. Article 359 has nothing do with statutory powers conferred by Parliament. Article 359 expressly deals with the constitutional right _to move a court and the constitutional enforcement of that right. So far as ordinary laws are concerned, Parliament can always amend the law, having regard to the circutµstances obtaining at a particular point of time ; for instance, Parliament could have amended s. 491 of the Code by repealing that section altogether or by suitably amending it. Briefly stated, Art. 359 provides for the suspension of some constitutional rights in . the manner prescribed thereunder. The statutory rights are left to be dealt with by the appropriate Legislature in exercise of the powers conferred on them. · The argument that the intention of the makers of the Constitution in enacting Art. 359 would be defeated, if s. 491 of the Code .was salvaged, does not appeal to me. If Parliament had amended s. 491 of the Code, which it should have done if -it intended to do. so, this. alleged anomaly pointed out by the learned Attorney General. could not have arisen. I would, therefore, hold that the expression "right to move any Court for t~~ enforcem~i:t of such of the rights conferred by Part III could legiumately refer only to the right to move under Art. 32 or Art. 226 of the Constitution for the said specific relief and could not be applied without doing violence to the language used to the exercise of the statutory power conferred on the High Courts under s. 491 of the Code. If that be so, the expression "all proceedings pending in any Court for the enforcement of the rights" used in the second limb of Art. 359 must also necessarily refer to proceedings initiated in exercise of the right to move envisaged in the first limb of the article.

pp. 864–865

I shall now proceed to consider some of the minor points raised at the Bar. Another argument advanced on behalf of the respondents may also be briefly noticed. It is said that while Art. 358 maintains the legislative incompetency to make laws in derogation of •fundamental rights other than those enshrined in Art. 19, Art, 359 enables the President by an indirect process to enlarge the said legislative competency and, therefore, Art. 359 must be so read as to confine its scope only to executive acts. I cannot agree. Article 359 does not ex facie enlarge the legis~ative competency of Parliament or a State Legislature. It does not enable them to. make laws during the period covered by the order of the President infringing the fundamental rights mentioned therein. It does not empower the Legislatures to make void laws it only enables the President to suspend the right to move the Court during the period indicated in his order. Once that period expires, the affected party can move the Court in the manner prescribed· by the Constitution. Despite Art. 358 it may happen that void laws are made and executive actions are taken inadvertently or otherwise ; and Art. 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President's order. The invalidity of the argument would be clear if it was borne in mind that Art. 358 also saved executive acts infringing Art. 19, but nonetheless Art. 359 gave protection against the exercise of the right ·to move. any court in respect of such acts not saved by Art. 358. If the infringement of fundamental rights by executive action not saved by Art. 358 could not be a basis for the exercise of a right to move during the period of suspension, by the same token, laws not saved by Art. 358 could not equally be the basis for such an action during the said period. Be it as it may, the phraseology of Art. 359 is wide enough to comprehend laws made in violation of the specified fundamental rights.

pp. 865–866

Another argument advanced is, while Art. 358 read with Art. 13(1) and (2), maintained the constitutional position that all laws infringing fundamental rights other than that enshrined in Art. 19 would be void during the emergency, the President by issuing the order he did, indirectly, in effect and substance, validated the laws infringing Arts. 14, 21 and 22, and, therefore, the issuing of the said order must be held to be a fraud on his powers. This argument has no merits. It is based upon a misapprehension of the doctrine of fraud on powers. In the context of the application of the doctrine to a statutory law, this Court observed in Gullapally Nageswara Rao v. Andhra Pradesh Road Transport. Corporation (1) thus :

p. 866

"The legislature can only make laws within its legislative competence. Its legislative fielc may be circumscribed by specific legislative entrie.· or limited by fundamental rights created by the Constitution. The legislature cannot overstep the field of its competency, directly or indirectly. The Court will scrutinize the law to ascertain whether the legislature by device purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. If, in fact it has power to make the law, its motives in making the law arc

p. 866

irrelevant." To the same effect are the observations in Gajapati Narayan Deo v. The State of Orissa( On the same analogy, the President cannot overstep the limits of his power defined under Art. 359 of the Constitution. So long as he does not exceed his power, the .effect of his order made within bounds could not conceivably sustain the plea of fraud on powers. Fraud on power implies that a power not conferred is exercised under the cloak of a power conferred. But if an act can legitimately be referred to a power conferred, the intention of the person exercising (') [1959] Supp. I S.C.R. 319, 329. ( [1954] S.C.R. I. the power or the effect of his exercise of the power is irrelevant. Now, on the construction placed by me on Art. 359, the President has clearly the constitutional power to suspend the aforesaid right. The fact that Parliament by taking shelter under that order may enforce void laws cannot make a valid exercise of a power of the President one in fraud of his power.

pp. 866–867

The next argument is that the order issued by the President is in excess of the powers conferred under Art. 359 of the Constitution. Under Art. 359, the argument proceeds, the order made by the President can relate to a period or the whole or a part of the territory of India and cannot be confined to a class of persons. As the order is restricted to persons that have been deprived of their rights under the Defence of India Ordinance, it is said that it is not sanctioned by the provisions of Art. 359. There are no merits in this contention. Under the order the right to move for the enforcement of the rights mentioned therein is suspended during the period of emergency and it applies to the entire country. The fact that only persons, who are deprived of their rights under the Defence of India Ordinance, cannot exercise their right to move the Court does not make the order one confined to a class of persons. The Ordinance has force thronghour India and ex hypothesi only persons affected would move the Court. That does not mean that the order is confined only to a class of persons.

p. 867

The next contention is that the impugned section suffers from the vice of excessive delegation and that in any view the relevant rules framed are in excess of the power conferred upon the Government by the said Act. cannot agree with either of the two contentions. On this aspect I have nothing more to add to that found in the judgment of my learned brother.

p. 867

But the order made by the President still leaves the door open for deciding some questions even under Art. 32 or Art. 226 of the Constitution. The order is a conditional one. In effect it says that the right remains suspended if such person has been deprived of any such right under the Defence of India Ordinance, 1962, or under any rule or order made thereunder. The condition is that the person should have been deprived of a right under the Defence of India Ordinance or under any rule or order made thereunder. If a person was deprived of such a right not under the Ordinance or a rule or order made thereunder, his right would not be suspended. If the order was made in excess of the power conferred upon the Government by the said Ordinance, it would not be covered by that order. If the detention was made mala fide, it would equally be not an order made under the Ordinance.

pp. 867–868

My view on the basis of the aforesaid discussion may be stated thus : ( 1) The detenus cannot exercise their right to enforce their fundamental rights under Arts. 21, 22 and 14 of the Constitution, during the period for which the said right was suspended by the President's order. (2) This does not preclude the High Court to release the detenus in exercise of its power under s. 491 of the Code of Criminal Procedure, if they were imprisoned under a void law, though the voidness of the law arose out of infringement of their fundamental rights under Arts. 14, 21 and 22 of the Constitution. (3) The President's order does not preclude, even under Art. 32(1) and Art. 226 of the Constitution, the petitioners from proving that the orders of detention were not made under the Defence of India Ordinance or the Act either because they were made, (i) outside the provisions of the Ordinance of the Act, or (ii) in excess of the power conferred under them, or (iii) the detention were made mala fide or due to a fraudulent exercise of power.

p. 868

I would close with a few observations. In the view I have taken, there are three courses open to Parliament : either it can make a valid law without infringing the fundamental rights other than those enshrined in Art. 19 or amend s. 491 of the Code in order to maintain the enforcement of void laws, or do both. It is not ,for me to suggest the right course.

p. 868

In the result, the petitions will now go to the Constitution Bench for disposal on the said questions.

p. 868

· ORDER BY COURT

p. 868

In' accordance with the opinion of the majority the constitutional points raised in the Appeals are dismissed. Appeals to be set down individu·ally before a Constitution ·Berich for dealing with the. other• contentions raised in each one of them.

p. 868