TaxTMI 
TaxTMI 
1977 (1) TMI 147
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....nted under Articles 133 and 134(1)(e) of the Constitution and Others by Special leave granted by this Court under Article 136 of the Constitution, and which are directed against various final and interim judgments and orders of the High Courts of Bombay and Karnataka passed in writ petitions filed under Articles 226 and 227 of the Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as 'the Act') complaining of certain constraints imposed on them under orders made under section 5 of the Act and claiming facilities in excess of those provided in the said orders, shall be disposed 0f by this judgment. A gist of the orders appealed against and particulars of the petitions in which they have been passed given in the sub-joined table for facility of reference :--- FIRST BATCH OF APPEALS . Sr. No. No. of appeal Date of the order appealed against No. of the application in which the order appealed against has been passed Name of the High Court wh....
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....d at intervals of not less than a month, funds not exceeding Rs. 30/per month and may spend these funds or a similar sum from his own private funds on such objects and in such manner as may be permissible under the rules, in case in which for want of funds any security prisoners are compelled to do without small amenities which their fellow prisoners enjoy, such amenities may, if considered absolutely necessary by the Commissioner or the Superintendent be supplied to them at Government costs. (ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of the security prisoners concerned. (iii) Amounts in excess of those prescribed in subclause (i) may be received by the Commissioner or the Superintendent on behalf of security prisoners, but they shall not be spent in any month beyond the limits laid down in the said sub-clause. 12. .. .. .. .. .. (ii) The number of interviews which a security prisoner may be permitted to have shall not ordinarily exceed one per month. (xi) In addition to the interviews permissible under the preceding provisions of this clause, a security prisoner may with the permission of the detaining ....
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....d any of the concessions or facilities provided by or under any of the provisions of this order in respect of any security prisoner or class of security prisoner, and for such period or periods, as the State Government may, from time to time specify. Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the detenus to receive or purchase toilet requisites, toilet soap and to consult private doctors in case of genuine necessity if an application is made to it in that behalf, submitted that the right of any person to move any court for the enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of the Constitution having been suspended by virtue of the Presidential Orders dated June 27, 1975 and January 8. 1976 issued under clause (1) of Article 359 of the Constitution (which are absolute in terms) for the period during which , the proclamation of emergency made on June 25, 1975 under....
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.... vires and violative of the principles of reasonableness and legality have rightly have been struck down by the High Court of Bombay: (6) that a curtain cannot be drawn round the detenu ,red while he can be cut off from undesirable contacts, he cannot be cut off from unobjectionable contacts; (7) that if the place of detention mentioned in a detention order is a prison, then the detenu would be governed by the Prisons Act but not if the detenu is lodged elsewhere; (8) that the detenus' grievances are not 'echoes' of Article of the Constitution but are the echoes of the 'totality' law; (9) that it is not right to say that what is not contained in Article 19 of the Constitution is contained in Article 21 of the Constitution as this submission ignores Articles 15, 25 and 26 of the Constitution which are applicable even to non-citizens. The learned Additional Solicitor General has, in his rejoinder, contended that while total release is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27th June, 1975 and January 8, 1976 issued under Article 359 (1) of the Constitutio....
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....s only where there are specific provisions in the rules framed trader section 5 of the' Act that those provisions being conditions of detention can be enforced when still available to an individual detenu that the provisions of Maharashtra Conditions of Detention Order, 1974 have to be examined and scrutinized to see if the facilities claimed by the detenus are excluded by implication, e.g. where a provision for a particular number of interviews is made, it necessarily implies a prohibition against having more interviews; that the question whether a particular act which is not specifically prohibited should be permitted or not has to be decided by keeping in view the effectiveness of detention; that allowing a detenu to go and vote at a corporate election or to take part in legislative proceedings is destructive of the purpose of detention and in any event approach must be made to the Executive to exercise its rights of parole or relaxation which is implicit in sections 12 and 5 of the Act as for instance if the release is necessitated by exigencies like performance of obsequieal ceremonies or sharadh of a kith and kin, but an order directing the detenu to be taken under police....
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....sp; "Article 352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation make a declaration to that effect. (2) A Proclamation issued under clause (1)-(a) may be revoked by subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament; Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the Peopl....
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.... in that 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." ** Inserted retrospectively by section 5 of the Constitution (Thirty-eighth Amendment) Act, 1975. "Article 359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the fight 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. **(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State us defined in the said Part to make any law or to take any executive action which the State wou....
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....titution as may be specified by him (the President) in his order. In other words, while Article 358 proporio vigore suspends the fundamental rights guaranteed by Article 19 of the Constitution thus enabling the State during the period the proclamation of emergency is in operation to make laws in violation of Article 19 of the Constitution and to take Executive action under those laws despite the fact that those laws constitute an infringement of the rights conferred by Article 19, Article 359(1) of the Constitution does not suspend any fundamental right of its own force but authorises the President to deprive an individual of his right to approach any Court for enforcement of any or all of the rights conferred by Part III of the Constitution. In Mohd. Yaqub etc. v. The State of Jammu & Kashmir ([1968] 2 S.C.R. 227), a Constitution Bench of this Court consisting of seven Judges inter alia pointed out that there is a distinction between Articles 358 and 359(1) of the Constitution. Whereas Article 358 by its own force suspends the fundamental rights guaranteed by Article 19, Article 359(1) of the Constitution has the effect of suspending the enforcement of specified fundamental rights....
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....fect of the Presidential Order suspending the enforcement of fundamental right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right." Thus the foregoing discussion makes two things perfectly clear(1) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358 and (2) that it is not open to any one either to challenge the validity of any law or any Executive action on the ground of violation of a fundamental right specified in the Presidential Order promulgated under Article 359(1). of the Constitution. It would be apposite at this stage to mention that in England in Liversidge v. Anderson ([1942] A.C. 206) and Greene v. Secretary of State for Home Affairs ([1942] A.C. 284) and in India in Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura ([1964] 3 S.C.R. 442 = A.I.R. 1964 S.C. 173) and Makhan Singh v. State of Punjab ([1964] 4 S.C.R. 797 = A.I.R. 1964 S.C. 381) the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrar....
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....p; "In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, V.V. Giri, President of India, by this. Proclamation declare that a grave emergency exists whereby the security of India is threatened by .external aggression." Presidential Order dated November 16, 1974 issued under clause (1) of Article 359 of the Constitution is in these terms :-- "In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that :-(a) the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1)(c) of the Maintenance of Internal Security Act, 1971 as amended by Ordinance II of 1974 for the enforcement of the rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution, and (b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said section 3(1)(e) shall remain suspended for a period of six months from the date of issue of this order or the peri....
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....hts conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall remain suspended during the operation of the proclamations of emergency dated December 3, 1971 and June 25, 1975. The difference between the Presidential Order dated June 27, 1975 which was supplemented by the Presidential Order dated January 8, 1976 and the earlier Presidential Orders barring the right of a person to move any court for enforcement of certain fundamental rights conferred by Part III of the Constitution may now be noticed. While the Presidential Order dated June 27, 1975, which, as already stated, was supplemented by the Presidential Order dated January 8, 1976 was absolute and unconditional in terms, the earlier Presidential Orders alluded to above were conditional and limited in scope. Apart from the fact that the Presidential Order dated November 3, 1962 did not make any mention of the pending proceedings, it was, as pointed out by this Court in State of Maharashtra v. Prabhakar Pandurang Sanzgiri ([1966] 1 S.C.R. 702 = A.I.R. 1966 S.C. 1924) Dr. Ram Manohar Lohia v. State of Bihar ([1966]1 S.C.R. 709 = A.I.R. 1966 S.C. 540) Makhan Singh v. State of P....
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.... liberty conferred by Articles 14, 19, 21 and 22 of the Constitution but a redress of the complaint against illegality or ultra vires or unreasonableness of the Maharashtra Conditions of Detention Order, 1974 which imposes unwarranted constraints on them and does not provide them with facilities to which even the ordinary prisoners are entitled is totally misconceived. It overlooks the well recognized canon of construction that 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. It also ignores the well settled position that in times of, emergency when the security of the State is of utmost importance, the subordinate legislation has to be benevolently construed and the strict yardstick of reasonableness cannot be appropriately applied. It also ignores the stark reality that the Presidential Orders dated June 27, 1975 and January 8, 1976 impose blanket bans on any and every judicial enquiry or investigation into the validity of an order depriving a person of his personal liberty no matter whether it stems from the init....
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..... Courts will apply the test of legality 'if the person aggrieved brings the action in the competent court'. But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action of their relationship with the power to act, it is no use appealing to this Particular concept of the Rule of Law. It is just inapplicable to the situation which arises here. Such a situation is governed by the Emergency provisions of the Constitution. There provisions contain the Rule of Law for such situations in our country ......... If the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive fled, as indicated above, should not be subjected to judicial scrutiny or judged by judicial standards of correctness, I am unable to see how the courts can arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess." The observations made by my learned brother Chandrachud, in A.D.M. Jabalpur v. Shivakant Shukla's case (supra) are a....
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....and 22 of the Constitution in view of the aforesaid Presidential Orders dated June 27, 1975 and January 8, 1976 which totally take away the locus standi of the detenus to move any court for the enforcement of the aforesaid fundamental rights and the petitions out of which the present appeals have arisen did not seek to enforce the orders laying down the conditions of detention but on the contrary challenged them and covertly sought to enforce the very rights which are suspended, they were clearly untenable and it was not open to the High Court of Bombay to strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 ignoring the weighty observations made by this Court in the State of Bombay v. Virkumar Gulabchand Shah ([1952] S.C.R. 877 at 884) to the effect that measures which often have to be enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake should be construed more liberally in favour of the State than peace-time legislation. Now if no person has a locus standi to move any court to challenge the conditions of detention embodied in the Maharashtra Conditions of Detention Order, 1974, or ....
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....d. It has also been contended by Mr. Seervai that 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, the detenus 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....
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....gth of certain observations found in the judgments, including mine, in Additional District Magistrate, Jabalpur v. Shivakant Shukla (A.I.R. 1976 S.C. 1207, 1283=[1976] Supp. S.C.R. 172), decided by a Constitution Bench of this Court, cannot be accepted by us. I will also express my opinion, very briefly and broadly on some other contentions advanced by learned counsel for the respondents as issues relating to personal liberty, which have been matters of very special and anxious concern to this Court, arise here. I think this Court has made it amply clear in Shukla's case (supra) that the Constitution embodies, for all Courts in this country, the highest norms of law. It is the touch-stone by which the validity of all action, whether executive, legislative, or judicial is to be judged. That is why, this Court has, on several occasions, spoken of "the supremacy of the Constitution" explained by me in Shukla's case (supra) also as follows: "The position in this country is clearly one in which the fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of all other l....
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....ects of rights are elevated to a new level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with fundamental rights. Secondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal, invasions of these rights by executive, legislative, or judicial organs of the State. This necessarily means that these safeguards can also, be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. Thirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be. In that sense, it could be viewed as, substantially, an elaboration of what is found in Article 21, although it al....
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.... statutory or non-statutory supposed protection. . Shukla's case (supra) and other connected cases related to the enforcement of the right to personal liberty by obtaining an order of release of detenus after issuing writs of Habeas Corpus. Article 223 of the Constitution, no doubt, gives power not only to issue specified writs but enables High Courts to issue orders and directions for "any other purpose". It seems to me that this "other purpose" has to be similar to those for which one of the specified writs could issue except to the extent that each specified writ may have special features or incidents attached to it. Now, the writ of Habeas Corpus, as is well known, is wider in scope than enforcement of fundamental rights which are available against the State only and its officers and agents. Therefore, I had said in Shukla's case (p. 1300): "The remedy by way of a writ habeas corpus is more general. It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights [vide: Smt. Viday Verma v. Dr. Shiv Narain Verma, (1955)C2 SCR 983=AIR 1956 SC 108]. The Attorney General also concedes that jud....
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....e (supra). In all the cases now before us, the application considered by the High Court was for grant of a direction or order against the State or its Officers, acting in the performance of their purported duties. The remedy sought against them was clearly covered by the Presidential inhibition which operates, under the Constitution, which is supreme, against the High Courts. Hence, whatever may be the grievances of the detenus, with regard to the place of their confinement, the supply of information to them, their desire to get treatment by their own private doctors or to obtain some special or additional food required by them from their own homes, or to leave the place of their confinement temporarily to go to some other place to perform some religious ceremony or other obligation, for which they had erroneously sought permission and directions of the Court subject to any conditions, such as that the detenus could be accompanied by the police or remain in the custody of the police during the period, are not matter which the High Court had any jurisdiction to consider at all. It was, therefore, quite futile to invite our attention to the allegations of petitioners about suppose....
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.... the scope of our judicial functions. We cannot suggest what a comprehensive set of rules on such subjects should be. All that we need say on such a subject is that the attitude on behalf of the State has been very reasonable and proper in this Court. And, we have no doubt that any attempt to formulate uniform rules on such matters by authorities concerned and empowered to do so will also disclose the same reasonableness. Speaking for myself, I am inclined to suspect that a number of allegations made on behalf of the detenus have the oblique motive of partisan villification or political propaganda for which Courts are not proper places. I would not like to make any further comments on this aspect. I would next like to make a few observations about the contention most vehemently pressed for acceptance by us by Mr. Seervai appearing on behalf of the respondents. It was that we should adjudicate upon the validity of the rules regulating conditions of detention which are being applied to the detenus. The rules and the enactments under which they have been made have been considered in the judgment of my learned brother Jaswant Singh. I do not propose to. cover the same ground afresh. I ....
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....t seems to me that the broad purpose of all action which results in the detention of a person by the State or its officers must necessarily be a deprivation which could, if their effects on the detenu alone were to be considered, be not incorrectly described as "punitive". Again, "preventive" detention, like "punitive" detention, may have some therapeutic or reformative purposes behind them for the detaining authorities viewing the matters from administrative or psychological points of view necessitating some action in national interest. Some jurist, who undertakes a study of the subject, may discover certain broad similarities of social purposes, side by side with the distinctions already pointed out by this Court. In Shukla's case I indicated that the exercise of power of preventive detention during an Emergency may be viewed as a purely administrative. or. to use the term employed by Sir William Hordsworth. even "political" action lying in an area which is completely protected from judicial scrutiny. As we indicated in Shukla's case, high authority can be cited for such a proposition [see Liversidge's ([1942] A.C. 206) case, and Rex v. zadiq ([1917] A.C. 260)]. The r....
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....ntion under an Act authorising it from another rule which could only apply to persons in punitive detention undergoing sentences of imprisonment. These are really administrative matters with which High Courts can have no concern for the reasons given above and also in Shukla's case (supra). Learned counsel for the detenus appear to me to be resurrecting the ghost of a "Natural law" which we thought we had laid to rest in Shukla's case (supra). As certain arguments based on what looks like "National Law" have been advanced again before us, I may cite an instructive passage from Judge Cordozo's "Nature Of the Judicial Process". He said: "The law of nature is no longer conceived of as something static and eternal. It does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail. The modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeks to be the science of the just. But the modern philosophy of law departs essentially from the natural-law philosophy in that the ....