Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
MOHD. YAQUB, ETC.
Vs.
RESPONDENT:
THE STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT:
10/11/1967
BENCH:
WANCHOO, K.N. (CJ)
BENCH:
WANCHOO, K.N. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
BACHAWAT, R.S.
RAMASWAMI, V.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1968 AIR 765 1968 SCR (2) 227
CITATOR INFO :
RF 1973 SC1461 (836)
E 1976 SC1207 (354)
ACT:
Constitution of India Arts. 13(2). 14, 21, 22, 31, 166 and
359(1)--Whether an order made under Art. 359(1) is a ’law’
within the meaning of Art. 13(2)--if it can be tested
against fundamental rights in Part III including the
fundamental right the enforcement of which it
suspends--whether only such fundamental rights can be
suspended which have nexus with emergency--after suspension
of Art. 22 whether grounds of detention required to be
furnished under Art. 22(5)--Order of detention by Jammu &
Kashmir Government not in form required by Art. 166--if
valid.
HEADNOTE:
By a petition under Art.32 of the Constitution,the
petitioner challenged an order of detention passed against
him under r. 30(1)(b) of the Defence of India Rules,
1962. It was contended on his behalf, inter alia, (i) that
the order of the President passed on November-3. 1962 as
amended on November 11, 1962 under Art. 359(1) of the
Constitution, suspending the right to move any court for the
enforcement of the fundamental rights conferred by Arts.
14, 21 and 22 if any person was deprived of such right
during the period of the Emergency under the Defence of
India Ordinance No. 4 of 1962 or any rule or order made
thereunder, was a law within the meaning of Art. 13(2) of
the Constitution and could therefore be tested against the
fundamental rights in Part III of the Constitution including
the very fundamental right the enforcement of which is
suspended; that only such fundamental rights can be
suspended which have nexus with the reasons which led to the
Proclamation of Emergency, i.e., the President can only
suspend enforcement of fundamental rights under Arts. 22
and 31(2) by an order under Art. 359; that the order under
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
Art. 359 in the present case was violative of Art. 14 as it
enabled the executive to decide. in exercise of an arbitrary
discretion, whether to detain a person under the more
drastic provisions of the Defence of India Act 51 of 1962 or
the Preventive Detention Act; (ii) that in view of the
language of Art. 359 there should have been an express
provision in the Defence of India Act and the Rules that the
enforcement of fundamental rights under Arts. 14, 21 and 22
was suspended and in the absence of such a provision the
order passed under Art. 359 cannot stand in the way of the
detention order being tested under Part III of the
Constitution; (iii) that Art. 22(5) requires that grounds of
detention should be furnished to the detenu and the
President’s order of November 1962 does not do away with
this requirement which was not satisfied in the present
case; and (iv) that the order of detention was not in the
form required by Art. 166 of the Constitution and the State
Government therefore had to prove that it was passed by the
authority empowered to do so.
Held: (by the Court) :The petitions must be dismissed.
Per majority: (i) An order passed under Art. 359(1)
cannot be tested with the aid of Art. 13(2) under that very
fundamental right the enforcement of which it suspends.
Even if an order under Art. 359 is assumed to be law in its
widest sense, it cannot be a law within the mean-
228
ing of Art. 13(2), for if that were so, the Article would be
made nugatory. Art. 359 gives categorical powers to. the
President during the period when a Proclamation of Emergency
is in operation to suspend the enforcement of any of the
fundamental rights conferred by Part III. There is nothing
in it which in any way limits the power of the President and
it is for him to decide the enforcement of which of the
fundamental rights should be suspended during the Emergency.
[234D-G; 232B-D]
There is a basic assumption in Art. 359 that it may be
necessary for the President to suspend the enforcement of
any of the fundamental rights in the interest of the
security of India and in the face of that basic assumption,
there is no scope for enquiry into the question whether the
fundamental right the enforcement of which the President has
suspended under Art. 359 has anything to do with the
security of India which is threatened whether by war or
external aggression or internal disturbance. It cannot be
said that only fundamental rights under Art. 22 or Art. 31
(2) can be suspended under Art. 359. [232 F, G; 235C-D]
Even if the provisions for detention under the Defence
of India Act and the Rules are more stringent, after the
suspension of Art. 14 under Art. 359, no question of the
order under Art. 359 being bad under Art. 14 can arise.
[235H]
Ghulam Sarwar v. Union of India [1967] 2 S.C.R. 271;
dissented from.
(ii) The clear intendment of the President’s order is
that if any fundamental right of any person under Arts. 14,
21 and 22 was invaded by any action taken under the
Ordinance (later replaced by the Act), or any rule or order
thereunder, that action could not be tested on the anvil of
those fundamental rights. It was therefore not necessary to
make any express provision in the Act or the Rules for the
suspension of the enforcement of the fundamental rights
under Arts. 14, 21 and 22. [236E]
(iii) As the President’s order suspending Art. 22 was
validly made, there was no question of furnishing any
ground under Art. 22(5) to the detenu if the detention was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
under the Defence of India Act or the Rules, for the entire
Art. 22 was suspended. [236G]
(iv) Article 166 has no application to the State of
Jammu & Kashmir and as the detention order was made in the
form required by s. 45 of the Constitution of Jammu &
Kashmir, it must be presumed to have been validly made.
[237B]
Per Hidayatullah, J. Although a suspension of a
fundamental right under Art. 359(1) may be made either for
the whole of India or any part of the territory of India,
Ghulam Sarwar’s case points out that there is nothing to
prevent the President from restricting the scope of the
order to a class of persons provided the operation of the
order is confined to an area and to a period. As the order
was applicable to the whole of India and for the duration of
the emergency although it affected a class, namely,
foreigners, it was upheld. This was not the application of
Art. 14. This was said because the argument was that the
order could only be with reference to the whole or a part of
the territory of India and not with respect to a class such
as foreigners. That meant that the order was considered in
relation to the words of Art. 359(1). The meaning now
attributed to the decision in Ghulam Sarwar’s case is in
view of the width of language used in that case and the
decision of the majority in the present also suffers from
a width of language in the other direction whereas the truth
ties midway. [238A-F]
229
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 109 to 114, 117,
118, 120, 121, 128 to 133, 142, 143, 186, 190 and 191 of
1967.
Petitions under Art. 32 of the Constitution of India for
the enforcement of the fundamental rights.
M.K. Ramamurthi, for the petitioners (in W. Ps. Nos.
109, 142 and 143 of 1967).
S. Shaukat Hussain, for the petitioners (in W. Ps. Nos.
110114 and 118 of 1967).
Janardan Sharma, for the petitioners (in W. Ps. Nos.
117, 120, and 121 of 1967).
R.C. Prasad, for the petitioners (in W. Ps. 128-133 of
1967)
M.K. Ramamurthi and Vineet Kumar, for the petitioners
(in W. Ps. Nos. 186, 190 and 191 of 1967).
C.K. Daphtary, Attorney-General, R.H. Dhebar and S.P.
Nayar, for the respondent (in W. Ps. Nos. 109, 142 and 143
of 1967).
G.R. Rajagopal, R.H. Dhebar and S. P. Nayar, for the
respondent (in W.P. No. 110 of 1967).
R. Gopalakrishnan and S. P. Nayar, for the respondent
(in W. Ps. Nos. 111 to 114, 117, 118, 120, 121. 128 to 133,
186, 190 and 191 of 1967).
The Judgment of WANCHOO, C.J., SHAH, BACHAWAT, MITTER
and HEGDE, JJ. was delivered by WANCHOO, C.J., HIDAYATULLAH,
J. delivered a separate Opinion.
Wanchoo, C.J. These twenty-one petitions under Art. 32
of the Constitution for a writ of habeas corpus raise common
questions of law and will be dealt with together. It is
enough to set out the facts in one of the petitions (No. 142
of 1967), for the facts in other petitions are almost
similar. The petitioner was arrested on November 11, 1966
and detained under an order passed under r. 30(1)(b) of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
Defence of India Rules, 1962 (hereinafter referred to as the
Rules). It appears that though the order was reviewed after
the period of six months, no opportunity was given to the
petitioner to represent his case before the reviewing
authority. In consequence the detention of the petitioner be
came illegal after the first period of six months in view
of the judgment of this Court in P.L. Lakhanpal v. Union of
India(1). The State Government realising this defect,
cancelled the order dated November 11, 1966 on August 3,
196’7, and on the same day a fresh order of detention was
passed and it is this order which
(1) A.I.R. 1967 S.C. 1507: [1967] 3 S.C.R. 114.
L 1O Sup CI/67--17
230
is being challenged before us. It is not in dispute that in
view of the judgment of this Court in Jadev Singh v. State
of Jammu and Kashmir(1), it was open to the State
Government, in view of the formal defect in making the
review, to pass a fresh order of detention after revoking
the earlier order, which in any case became ineffective
after the first six months, if the circumstances which led
to the detention originally still continued.
The main attack of the petitioners is on the order of
the President passed on November 3, 1962, as amended on
November 11, 1962, under Art. 359(1) of the Constitution.
By this order the President declared that the right to move
any court for ’the enforcement of the fundamental rights
conferred by Arts. 14, 21 and 22 of the Constitution would
remain suspended for the period during which the
Proclamation of Emergency issued under Art. 352(1), was in
force, if any person was deprived of such right under the
Defence of India Ordinance (No. 4 of 1962) or any rule or
order made thereunder. The argument in support is put this
way. The President is an "authority" within the meaning of
Art. 12 and therefore is comprised within the definition of
the word "State" and the order passed under Art. 359 is a
law within the meaning of Art. 13(2) of the Constitution.
Consequently an order passed by the President under Art. 359
is liable to be tested on the anvil of the fundamental
rights enshrined in Part Ill of the Constitution: Secondly,
it is urged that an order passed under Art. 359 is made in
the context of the Emergency and therefore enforcement of
only such fundamental rights can be suspended which have
nexus with the reasons which led to the Proclamation of
Emergency. In consequence, the President can only suspend
the enforcement of fundamental rights under Art. 22 and
Art. 31 (2) under an order passed under Art. 359 and no
others. Thirdly, it is urged that even if the President can
suspend the enforcement of any fundamental right, the order
passed can still be tested under the very fundamental right
enforcement of which has been suspended. Fourthly, it is
urged that an order passed under Art. 359 can in any case be
challenged under Art. 14, and if so the order passed in the
present case is violative of Art. 14 because some persons
can be detained under the Defence of India Act, 51 of 1962
(hereinafter referred to as the Act) and the Rules while
others can be detained under the Preventive Detention Act.
As the Act and the Rules give more drastic powers for
detention as compared to the powers conferred by the
Preventive Detention Act, there is discrimination, for
there is no indication as to when detention should be made
under the Act and the Rules and when under the prevention
law, and the matter is left to the arbitrary discretion of
the executive. Fifthly, it is urged that in view of the
language of the order under Art. 359, there should have been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
an
[1968] 1 S.C.R. 197.
231
express provision in the Act and the Rules to the effect
that enforcement of fundamental rights under Arts. 14, 21
and 22 was suspended and in the absence of such an express
provision, the Presidential order under Art. 359 cannot
stand in the way of the detention order being tested under
Part III of the Constitution. Sixthly, it is urged that
Art. 22 (5 ) provides that grounds of detention should be
furnished to a detenu and the order of the President did not
do away with the necessity of furnishing the grounds.
Besides these main contentions, three subsidiary
contentions have also been raised in one petition or another
and they are-(1) that the fresh order had not been
communicated to the detenues and was therefore of no avail;
(ii) that the order was not in the form as required by Art.
166 of the Constitution and it is therefore for the State
Government to prove that it was passed by the authority
which had the power to do so; and (iii) that the fresh order
was mala fide.
The petitions have been opposed on behalf of the State
Government. It is unnecessary to set out in detail the
contentions in reply to the main points raised on behalf of
the petitioners. It is enough to say that the contention on
behalf of the State is that once the President has passed an
order under Art. 359 suspending the enforcement of any
fundamental right, it is not open to rely on that
fundamental right for any purpose, so long as the order
under Art. 359 stands and such an order cannot be tested in
any manner by the very fundamental right the enforcement of
which it has suspended. Further as to the subsidiary
points, the State contends that the fresh order of detention
was communicated to each detenu and that the order was in
the form required by the Constitution of Jammu and Kashmir
and that Art. 166 has no application to the State of Jammu
and Kashmir. It was finally denied that the order was mala
fide in any of the cases.
Part XVIII deals with Emergency Provisions and begins
with Art. 352 which provides for making a declaration 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", if
the President is so satisfied. Arts. 353 and 354 provide for
the effect of the Proclamation of Emergency; but it is
unnecessary to refer to them for present purposes. Article
358 lays down that during the period that a Proclamation of
Emergency is in operation, Article 19 shall remain
suspended, Article 359 with which we are particularly-
concerned lays down that 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
L10Sup. C1/67--18
232
suspended for the period during which the Proclamation is in
force or for such shorter period as may be specified in the
order." The order made under Art. 359 may extend to whole or
any part of the territory of India and has to be laid, as
soon as may be after it is made, before each House of
Parliament.
It will be seen from the terms or Art. 359 that it
gives categorical powers to the President during the period
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
when a Proclamation of Emergency is in operation to suspend
the enforcement of any of the fundamental rights conferred
by Part III. It is for the President to decide the
enforcement of which of the fundamental rights should be
suspended during the operation of the Proclamation of
Emergency.There is nothing in Art. 359 which in any way
limits the power of the President to suspend. the
enforcement of any of the fundamental rights conferred by
Part III.It is to our mind quite clear that the President
has the power to suspend the enforcement of. any of the
fundamental rights conferred by Part III and there is
nothing thereunder which makes any distinction between one
fundamental right or another. As Art. 359 stands, it seems
to us, it clearly envisages that once a Proclamation of
Emergency has been issued, the security of India or any
part of the territory thereof may require that the
President should suspend the enforcement of any of the
fundamental rights conferred by Part III. There is in our
opinion no scope for inquiry into the question whether the
fundamental right the enforcement of which the President
has suspended under Art. 359 has anything to do with the
security of India which is threatened whether by war or
external aggression or internal disturbance, for Art. 359
posits that it may be necessary for the President to suspend
any of the fundamental rights in Part HI for the sake of the
security of India. There is thus a basic assumption in Art.
359 that it may be necessary for the President to suspend
the enforcement of any of the fundamental rights conferred
by Part III in the interest of the security of India. If he
considers that necessary, it is unnecessary in the face of
that basic assumption to inquire whether enforcement of a
particular fundamental right suspended by the President has
anything to do with the security of India, for that is
implicit in Art. 359. It follows therefore that it is open
to the President to suspend the enforcement of any of the
fundamental rights conferred by Part III by an order under
Art. 359 and this Article shows that wherever such
suspension is made it is in the interest of the security of
India and no further proof of it is necessary.
This brings us to the main ground’ raised on behalf of the
petitioner that an order under Art. 359 is a law made by
the State within the meaning of Art. 13(2) and has therefore
to be
233
tested under Part III of the Constitution. We may assume
for present purposes that the President is comprised within
the word "State" in Art. 12. We may also assume that the
order made by the President under Art. 359 is a law in its
widest sense. The question however is whether such an order
can be considered to be a law for the purpose of Art. 13(2)
and tested thereunder. Article 13(2) and Art. 359 being
parts of the same Constitution stand on an equal footing and
the two provisions have to be read harmoniously in order
that the intention behind Art. 359 is carried out and it is
not destroyed altogether by Art. 13(2). It follows that
though an order under Art. 359 may be assumed to be law in
its widest sense, it cannot be law within the meaning of
Art. 13(2), for if that were so, Art. 359 would be made
nugatory. The Constitution through Art. 359 says that the
President may suspend the enforcement of any of the
fundamental rights in Part III where a Proclamation of
Emergency is in force and that means that during the period
of Emergency the fundamental rights, enforcement of which is
suspended, cannot be enforced. If the order is a law within
the meaning of Art. 13(2), the result would be that though
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
the order says that the enforcement of a particular
fundamental right is suspended during the period of
Emergency the order can still be tested with the aid of Art.
13(2) on the anvil of the same fundamental right, the
enforcement of which it suspends. That would in our opinion
result in making Art. ’359 completely nugatory, for then a
declaration made there under that the enforcement of certain
fundamental rights is suspended during the period of
Emergency would have no meaning whatsoever.’ Therefore,
applying the principle of harmonious construction we are of
opinion that an order passed under Art. 359. cannot be law
for the purpose of Art. 13(2), assuming it to be law in its
widest sense. It follows therefore that an order under Art.
359 derives its force from Art. 359 itself and takes effect
in accordance with its tenor and cannot be affected by Art..
13 (2), and cannot be tested under any of the provisions of
Part III of the Constitution which it suspends.
Reliance in this connection is placed on the judgment
of this Court in Ghulam Sarwar v. Union of India(1), where
the majority made a distinction between the President’s
order itself under Art. 359 and the effect of that order.
In that case it was observed that "there is a clear
distinction between deprivation of fundamental rights by
force of a constitutional provision itself and such
deprivation by an order made by the President in exercise of
a power conferred on him under a constitutional provision."
It was further observed. that "Article 359(1) does not
operate by its own force. The President has to make an
order declaring that the right to move a court in respect
of a fundamental right
(1) [1967] 2 S.C.R. 271.
234
or rights in Part III is suspended. He can only make an
order which is a valid one." It was further observed that
an order making an unjustified discrimination in suspending
the right to move a court under Art. 14, would be void at
its inception and would be a still born order.
We must say with greatest respect that it is rather
difficult to understand how an order under Art. 359 which
suspends the enforcement of a fundamental right can be
tested under that very fundamental right. It is true that
there is a distinction between Art. 358 and Art 359(1).
Article 358 by its own force suspends the fundamental rights
guaranteed by Art. 19; Art. 359(1) on the other hand
does not suspend any fundamental right of its own force but
it gives power to the President to suspend the enforcement
of any fundamental right during the period of Emergency.
But that cannot mean that an order passed under Art. 359(1 )
suspending the enforcement of a particular fundamental right
has still to be tested under the very fundamental right
which it suspends. That would in our opinion be arguing in
a circle and make Art 359 completely nugatory. It seems
that the majority in Ghulam Sarwar’s(1) case was also
conscious of the fact that the reasoning on which it came to
the conclusion that an order made under Art. 359 could be
tested under Art. 14. though it suspended that Article, was
open to the criticism that it was an argument in a circle.
The argument was however met by making a distinction between
the order and the effect of that order and it was observed
that if the order did not violate Art. 14 it could validly
’take away ,the right to enforce the fundamental right under
Art. 14. With greatest respect it is difficult to
appreciate this reasoning and the distinction on which it is
based. It seems to us that if Art. 359 is to have any
meaning at all and is not to be wiped out from the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
Constitution an order passed thereunder suspending a
fundamental right cannot possibly be tested under’ that
very fundamental right which it suspends. If that were
permissible no order under Art. 359 could really be passed.
If Art. 359 is not to be rendered nugatory, it must be held
that an order passed thereunder cannot be tested under the
very fundamental right the enforcement of which it suspends.
We must therefore respectfully differ from the view taken in
Ghulam Sarwar’s case(1) and hold that an order passed
under Art. 359(1) cannot be tested with the aid of Art.
13(2) under that very fundamental right the enforcement of
which it suspends. There is therefore no force in the
first point raised on behalf of the petitioners.
We ,also see no force in the second point raised by the
petitioners. As we have already indicated Art. 359
envisages that an
(1) [1967] 2 S.C.R. 271.
235
order passed thereunder for suspension of the enforcement
of particular fundamental right is for the sake of security
of India It is therefore not necessary to enquire whether
there is any nexus between a particular fundamental right
suspended and the security of India. Article 359 itself
posits that it may be necessary in the interest of the
security of India to pass an order suspending the
enforcement of any fundamental right thereunder. This is
clear from the fact that Art. 359(1), provides for the
suspension of the enforcement of the fundamental rights in
Part III of the Constitution only during the period of
Emergency meaning thereby that suspension of the
enforcement of any of the fundamental rights which the
President considers necessary is for the security of India.
We fail to see why only fundamental rights under Art. 22 or
under Art. 31(2) can be suspended under Art. 359; Article
359 clearly shows that any fundamental right in Part Ill
can be suspended during an Emergency and we cannot limit
Article 359 in the face of the unambiguous and express
words thereof and say that only the enforcement of
fundamental right under Articles 22 and 31(2) can be
suspended. It may be that prima facie these two fundamental
rights appear to have a clearer nexus with security of
India; but it does not follow that other fundamental fights
may not in an Emergency have such a nexus. In any case Art.
359 itself proceeds on the basis that the suspension of the
enforcement of all or any of the fundamental rights is for
the sake of security of India and so gives the power to the
President to suspend such enforcement if he considers it
necessary for that purpose. The second contention raised
on behalf of the petitioners must also be rejected.
As to the third contention, we have already indicated that
an order passed under Art. 359(1) suspending the enforcement
of a particular fundamental right cannot be tested under
that very fundamental right. We cannot see how if the order
under Art- 359 suspends Art. 14 its validity can still be
tested under that very Article. We have already expressed
our respectful dissent from the view taken in Ghulam
Sarwar’s case(1) and must reject this contention.
As the enforcement of the fundamental right under Art.
14 was suspended by the President’s order under Art. 359, no
question of that order being bad under that Article can
arise even if we assume that the provisions for detention
under the Act and the Rules are more stringent than the
provisions for detention under the Preventive Detention Act.
The fourth contention also fails.
As to the fifth contention it is urged that on. the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
words of the order passed by the President suspending the
enforcement of fundamental rights under Arts. 14, 21 and 22,
there had to be a
236
provision in the Act and the Rules expressly to the effect
that these fundamental rights would not be enforceable. We
cannot understand how any provision could have been made in
the Act and Rules to this effect. Such a provision in the
Act 43r the Rules would be clearly unconstitutional. It is
only because Art. 359(1)provides that the President may
suspend the enforcement of a particular fundamental right
that it is possible for the enforcement of any fundamental
right to be suspended during the Emergency.What the
President has provided in the present case is that the
enforcement of fundamental rights under Arts. 14, 21 and 22
would be suspended if any person has been deprived of such
right under the Defence’ of India Ordinance (later replaced
by the Act) or the Rules or orders made thereunder. It is
necessary to emphasis that the President’s order speaks of
suspension under the Ordinance (later replaced by the Act)
or the Rules or orders made thereunder. It does not say
that the enforcement of such right is suspended if any
person is deprived of it by the Ordinance the Rules or
orders made thereunder. Therefore it was not necessary that
there should be any express provision in the Act or the
Rules suspending the enforcement of fundamental rights under
Arts. 14,21 and 22. The clear intendment of the President’s
order is that if any fundamental right of any person under
Arts. 14, 21 and 22 was invaded by any action taken under
the Ordinance (later replaced by the Act), or any rule or
order thereunder, that action could not be tested on the
anvil of those fundamental rights. It was therefore not
necessary to make any express provision in the Act or the
Rules for the suspension of the enforcement of the
fundamental rights under Arts. 14, 21 and 22. The fifth
contention must also fail.
The sixth contention is that Art. 22(5) which lays down
that grounds of detention must be communicated to the person
detained must still be applicable. We have not been able to
understand this argument at all. If the President’s order
is validly made-as we hold it to be-and if it suspends Art.
22--as it does--we fail to see how clause (5 ) continues,
for it is only a part of Art. 22 which has been suspended.
There is no question therefore of furnishing any ground
under Art. 22(5) to the detenu if the detention is under the
Act on the Rules, for the entire Art. 22 has been suspended.
The argument under this head is also rejected.
This brings us to the subsidiary points raised on behalf
of the petitioners. It is first said that the fresh order
was not communicated to the detenues. This has been denied
on behalf of the State. We see no reason why the fresh
order which was passed on the same day on which the earlier
order was cancelled would not have been communicated.
Nothing has been shown to us to disbelieve the statement on
behalf of the State that the fresh order was
237
communicated in each case and. therefore any argument based
on its not being communicated must fail.
Then it is argued that the order is not in the form as
required by Art. 166. It is enough to say that Art. 166
does not apply to the State of Jammu and Kashmir. We have
to look to the Constitution of Jammu and Kashmir to see
whether the form of the order is in accordance therewith.
It is clear that the order is in the form required by s. 45
of the Constitution of Jammu and Kashmir. The presumption
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
must therefore be-made that it was passed validly unless the
petitioners can show that it was not passed as required by
law. No attempt has been made on behalf of the petitioners
to show that. The contention on this head must therefore
also be rejected.
Lastly, it is urged that the orders in these cases were
mala fide. This has been denied on behalf of the State. No
grounds have been shown which may lead us to the conclusion
that the fresh orders which were passed were mala fide. The
necessity for fresh orders arose because the review was not
made in accordance with the manner indicated by this Court
in Lakhanpal’s case(1). The fresh order that was made was on
the same facts and must in the circumstances be held to be
valid in view of the judgment of this Court in Jagdev
Singh’s case(2). The petitions therefore fail and are hereby
dismissed.
Hidayatullah, J. I agree that the petitions be
dismissed. As I was a member of the Constitution Bench
which decided Ghulam Sarwar’s(2) case I wish to say a few
words in explanation. The judgment of Subba Rao, C.J. to
which I was a party has expressed itself somewhat unhappily
on ,the point on which it has been overruled in the judgment
just delivered. The former Chief Justice upheld the
extension of G.S.R. 1418/30-10-62 (which suspended the
benefits of Arts. 21 and 22 to a foreigner) by G.S.R.
1275/27-8-3965. The latter order suspended Art. 14 in
addition to the two articles already suspended. This
’suspension was upheld on the ground that there was a clear
classification between citizens and foreigners and in a
state of war and emergency foreigners could be treated as a
class. In other words, the order was tested on the ground
of Art. 14 itself which the order of the President sought to
suspend.
In the judgment just delivered it has been said that the
reasoning in Ghulam Sarwar’s(3) case is difficult to
understand and that the suspension of Art. 14 precludes
examination of the order under that article. I should have
thought that I had sufficiently explained my position
during the discussion of the draft judgment
(1) A.I.R. (1967) S.C. 1507: [1967] 3 S.C.R. 114
(2) [1968] 1 S.C.R. 197.
(3) [1967] 2 S.C.R. 271.
238
in Ghulam Sarwar’s(1) case but it appears that in spite of
my doubts about the width of language in that judgment, the
decision to which I became a party continued to bear the
meaning now attributed to it. If I may say with, great
respect, the judgment just delivered also suffers from a
width of language in the other direction. The truth lies
midway.
Although a suspension of a fundamental right under
Art. 359(1) may be made either for the whole of India or any
part of the territory of India, Ghulam Sarwar’s(1) case
points out that there is nothing to prevent the President
from restricting the scope of the order to a class of
persons provided the operation of the order is confined to
an area and to a period. As the order was applicable to
the whole of India and for the duration of the emergency
although it affected a class, namely, foreigners, it was
upheld. This was not the application of Art. 14. This was
said because the argument was that the order could only be
with reference to the whole or a part of the territory of
India and not with respect to a class such as foreigners.
That meant that the Order was considered in relation to the
words of Art. 359(1). Room was, however, to be left for the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
play of Art. 14 for those theoretically possible (and
fortunately ’only theoretically possible) cases in which the
exercise of the power itself may be a cloak for
discrimination, in other words, cases of mala fide action
and clear abuse of the power for some collateral purpose.
This strict reservation only was intended to go into the
judgment in Ghulam Sarwar’s(1) case but if a wider meaning
can be spelled out from that judgment I dissent from it and
say that I never intended to ’be a party to such a wide
statement. The examination under Art. 14 of the suspension
of the article itself, as expressed in the judgment of Subba
Rao C.J. gives a very different impression. For the same
reason I cannot subscribe to the width of language in the
judgment just delivered which apparently ’does not make any
reservation at all. Therefore I agree to the order proposed
but reserve my reasons.
R.K.P.S. Petitions dismissed.
(1) [1967] 2 S.C.R. 271.
239