TaxTMI 
TaxTMI 
1977 (1) TMI 147
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....nstitution 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 which passed the order Name of the detenu in whose favour or a....
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....se 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 authority, be granted not more than two special interviews, for the settlement of his business or profe....
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....y 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 clause (1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Arti....
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.... (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 Constitution which are unconditional even conditions of detention cannot be enforced by moving a court during the period of emergency and that the content....
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....on 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 guard to the place where obsequies of a dead relation are to be performed cannot be made by a court as it tantamounts to onforcing his personal ....
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....t 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 People first sits after its reconstruction unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also ....
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....ate, 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 would but for the provisions contained 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....
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....ion 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 so. that these concept cannot be used to test the legality of an Executive action. Reference in this connection may also usefully be made to a passage in Shivakant Shukla's case (supr....
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.... 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 arbitrary or unlawful has been negatived. In the Liversidge's case (supra) the following memorable observations made by the House of Lords in the King v. Halliday, Ex parte zadig([1917] A.C. 260) were ....
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....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 period during which the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution the 3rd December, 1971, is in force, whichever period expires earlier. (2) This order shall extend to the whol....
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....ifference 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 Punjab (supra) and by the majority in .A.D.M. Jabalpur v. Shivakant Shukla (supra), hedged by a condition inasmuch as it declared that the right of any person to move any court for the enforcement of rights conferred by Articles 21 an....
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....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 initial order directing his detention or from an order laying down the conditions of his detention. It has to be borne in mind that the rule of law during the emergency is no other than what is contained in Chapter XVIII of the Constitutio....
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....evance 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 also apposite and may be conveniently referred to at this stage :-- "The rule of law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Con....
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.... 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 other such orders or rules, the position whereof is the same as that of the .Punjab Communist Detenus Rules, 1950, which, as held by a Constitution Bench of this Court in Maqbool Hussain v. The State of Bombay ([1953] S.C.R. 730) constitute a body of.....
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....l 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 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 wh....
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....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 laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function, though wider in range, when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, th....
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.... 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 also goes beyond it inasmuch as it imposes limits on ordinary legislative power. Fourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State's agents or officials, although, read with ot....
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...., 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 judicial proceedings for trial of accused persons would fail outside the interdict of the Presidential Order under Article 359(1). Therefore, it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended". As already indicate....
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....ion 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 supposed conditions of their detention. Indeed, on the face of it, the nature of the claims made was such that they are essentially matters fit to be left to the discretion and good sense of the State authorities and officers. It is not possible to believe, on bare allegations of the kind we have befo....
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....late 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 .am in complete agreement with all that my learned brother has said. I would, however, like to add some observations on the main ground upon which the validity of the rules is assailed. It was urged before us that rules regulating conditions of their detention cannot be either so made or administer....
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....on, 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 result seems to me to be that the principle that the doctrine of State necessity is not available to a State against its own citizens becomes inapplicable during an Emergency, at least as a result of the suspension of enforceability of the rights of citizens under Articles 19 and 21 ,of the Constituti....
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.... 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 latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law--out of what it is and of what it is becoming. 'the natural law school seeks an absolute ideal law, 'natural law'. ...........