1977 (1) TMI 147 - SC - Indian Laws

Emergency Suspension of Fundamental Rights: Writ Petitions Inadmissible

UNION OF INDIA ETC. Versus BHANUDAS KRISHNA GAWDE AND ORS. ETC.

The Supreme Court held that writ petitions under Articles 226 and 227 were not maintainable during the Emergency due to the suspension of fundamental ... Whether in view of the orders dated June 27, 1975 and January 8, 1976 issued by the President under clause (1) Article 359 of the Constitution, the petitions under Articles 226 and 227 of the Constitution were maintainable? Held that:- Detenu in asking for their temporary removal from their places of detention to their homes to perform funeral ceremonies or to appear at any examination or to be taken to a doctor of their choice for social medical attention are not enforcing their rights to freedom, the contention is not sound. Any relief that may be asked for through the aid of court for giving facilities to a detenu to be taken from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility would be enforcing fundamental rights through the aid of Court. The Presidential Proclamation is a complete answer against the enforcement of such reliefs through the aid of Court. The detenus may approach the competent administrative authorities for special medical attention or for facilities for performance of funeral ceremonies of their kith and kin or for facilities to appear at the examination or any other facility of similar nature. It is open to the administrative authorities to take such action as they may be advised under the relevant provisions of the Act. But if the authorities do not give any relief it was said by counsel for the detenus then the detenus could come to the court. This contention is also unsound and unacceptable because that would also be enforcing fundamental rights through the aid and process of court which is not permissible so long as the aforesaid Proclamation is in force. We are therefore clearly of opinion that the aforesaid writ petitions were not maintainable and the High Court of Bombay and Karnataka were clearly in error in passing the impugned directions which are not warranted by any relevant law including the law relating to preventive detention of the kind with which we are concerned in the present cases. The detenus or their relations may if so advised, approach the appropriate Governments. or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof. Issues Involved:1. Maintainability of writ petitions under Articles 226 and 227 during the Emergency.2. Legality and reasonableness of the Maharashtra Conditions of Detention Order, 1974.3. Rights of detenus under Articles 14, 19, 21, and 22 during Emergency.4. Jurisdiction of High Courts to issue directions regarding conditions of detention.Detailed Analysis:1. Maintainability of Writ Petitions Under Articles 226 and 227 During the Emergency:The primary issue was whether, given the Presidential Orders dated June 27, 1975, and January 8, 1976, issued under Article 359(1) of the Constitution, the writ petitions under Articles 226 and 227 were maintainable. The Court emphasized that these Presidential Orders imposed a 'total or blanket ban on the enforcement of the fundamental rights conferred by Articles 14, 19, 21, and 22 of the Constitution.' Consequently, the petitions challenging the conditions of detention were not maintainable, as they sought to enforce rights suspended during the Emergency. The Court stated, 'The rule of law during the emergency is no other than what is contained in Chapter XVIII of the Constitution which is the positive and transcendental law.'2. Legality and Reasonableness of the Maharashtra Conditions of Detention Order, 1974:The Court examined whether the High Courts were correct in striking down clauses of the Maharashtra Conditions of Detention Order, 1974, and issuing directions to the detaining authorities. The Additional Solicitor General argued that the right to move any court for the enforcement of rights under Articles 14, 19, 21, and 22 was suspended, rendering the applications under Articles 226 and 227 non-maintainable. The Court agreed, stating, 'The doctrines of legality and vires which are sacrosanct in times of peace have no relevance in regard to a legislative or an executive measure taken in times of emergency in the interest of the security of the State.'3. Rights of Detenus Under Articles 14, 19, 21, and 22 During Emergency:The Court addressed the contention that the detenus' grievances were not echoes of the Constitution but of the 'totality of law.' The Court reiterated that during the Emergency, the enforceability of rights under Articles 14, 19, 21, and 22 was suspended. The Court stated, 'The Presidential Orders dated June 27, 1975, and January 8, 1976, unconditionally suspend the enforceability of the right conferred upon any person including a foreigner to move any court for the enforcement of the rights enshrined in Articles 14, 19, 21, and 22 of the Constitution.'4. Jurisdiction of High Courts to Issue Directions Regarding Conditions of Detention:The Court examined whether High Courts had jurisdiction to issue directions regarding the conditions of detention. The Court held that High Courts could not issue such directions during the Emergency, as it would amount to enforcing fundamental rights, which were suspended. The Court stated, 'The detenus or their relations may if so advised, approach the appropriate Governments or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof.'Conclusion:The Supreme Court held that the writ petitions under Articles 226 and 227 were not maintainable during the Emergency due to the suspension of enforceability of fundamental rights under Articles 14, 19, 21, and 22. The Court quashed the orders and directions issued by the High Courts of Bombay and Karnataka, emphasizing that the appropriate remedy for detenus lay with the administrative authorities, not the judiciary, during the Emergency. The appeals were allowed, and the High Court orders were set aside.