Full Judgment Text
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PETITIONER:
IN RE: SHRI SHAM LAL
Vs.
RESPONDENT:
DATE OF JUDGMENT18/01/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1978 AIR 1484 1979 SCR (1) 159
ACT:
Contempt of Court-News item published in a newspaper
criticizing judgment of Supreme Court--Contempt proceedings-
If could be initiated.
Per Majority (Untwalia and Kailasam, JJ.)
HEADNOTE:
HELD : The notice issued to the Editor of the Times of India
calling upon ’him to show cause why proceedings under Art.
129 of the Constitution for contempt of the Supreme Court
should not be initiated against him in respect ,of the
statements made criticizing the judgment of this Court in A.
D. M. Jabalpur v. S. Shukla (A.I.R. 1976 SC 1207) should be
dropped. It is not ;a fit case where formal proceedings for
contempt should be drawn up [582 A-B]
Beg. C. J. (dissenting)
There cannot be a grosser or clearer case of contempt of
court than the implications of this document. [586 C]
1.The obvious suggestion and threat held out to Judges of
the Court is that they will be maligned and punished if they
could not in future so decide ,cases as to protect the
interests or voice the opinions of whatever political or other sort
of group those who have signed the document
mentioned in the newspaper may represent. It implies
nothing more nor less than blackmail to demoralise upright
judges. People who could indulge in it certainly do not
represent those who say that law, as found in the
Constitution, must always be declared by Judges fearlessly
and honestly. [586 A-C]
2.It is a serious matter if persons in the position of
those whose names’ are ,,given in the offending news item
containing a vituperative attack upon a particular judgment
of this Court are really signatories of the document. The
attack is primarily irrational and abusive, even if it is
partially based on ignorance and ’the rest on misconception.
[582 E-F]
3.It may be that some people go on making assertions
about judgments of this Court without reading or under
standing them. But, the way in which this ’has been going
on, as a part of a consistent scheme to malign the Court
and its Judges, shows that their intention is to
deliberately shake the confidence of the public in this
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Court In any case, this would be the result it nothing is
done to check such a campaign of vilification. [583 E-F]
4.To blame and abuse the Judges after shutting one’s eyes
to what may be the shortcomings of his own case or the law,
as it exists, may be forgiven ;in a certain type of litigant
blinded by personal feelings. But, if those who ,purport to
act pro bono publico to protect the Constitution and the law
conduct themselves in this fashion and, if responsible daily
newspapers publish what could be regarded, in addition to
being defamatory and abusive, as gross contempt of this
Court, such people should be reminded of what the law says
about it and what their duties are to the Court, to the
public and to individuals maligned. [586 C-D]
5.Even if the case could be one in which two views were
possible on any ,question, no newspaper could be allowed to
describe one of the two views as a misdeed’ and suggesting
that Judges should have held what they could not honestly
believe to be correct in law. It was stated that the Judges
who gave such decisions would be ostracised in other
countries. Those who drafted the document seemed to be
aware of the perils of their irresponsible language. They,
therefore, took shelter behind some article in a foreign
newspaper presumably based on sources interested in
distortion or no better informed and with no better motives
than those quoted in the news item. [593 B-C]
582
JUDGMENT:
ORIGINAL JURISDICTION
V.M. Tarkunde, P. H. Parekh, (Mrs.) Manju Sharma and Kailash
Vasdev for the alleged contemner.
(Miss) A. Subhashini for the Sol. General.
S. K. Jain for the Intervener.
The following Orders of the Court were delivered
UNTWALIA & KAILASAM, JJ. Having considered every. pros and
cons of the matter in regard to the amended notice issued to
the, editor of the Times of India on the 11th January, 1978,
to show cause why ’proceedings for contempt of this Hon’ble
Court under Article 129 of the Constitution should not be
initiated against you in respect of the statements made in
the aforesaid news item in respect of the habeas corpus case
(A.D.M. Jabalpur v. S. Shukla) and the judgments of this
Court in that case’, we are of the view that it is not a fit
case where a formal proceedings for contempt should be drawn
up. We accordingly drop the proceedings.
BEG, C.J. I am afraid I am unable to concur with the
majority view on the case before us which arises out of the
publication of a news item in the Times of India newspaper
of 7 January, 1978, on which a notice to show cause why
proceedings for contempt of Court be not initiated against
the Editor of the news paper was issued. I think that it
is a serious matter if persons in the position of those,
whose names are given in the offending news item has having
subscribed to a document containing a vituperous attack upon
a particular judgment of this Court reported in Additional
District Magistrate, Jabalpur v. S. Shukla(l), are really
signatories of this document. The attack is primarily
irrational and abusive even if it is partially based on
ignorance and the rest on misconception. The view of this
Court in that case was that the effect of the Presidential
Order under Article 359 of the Constitution considered there
was to disable High Courts from investigating questions
relating to violation of the fundamental rights to personal
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liberty, protected by Article 21, in proceedings under
Article 226 of the Constitution.
Article 21 of the Constitution reads as follows
"Article 21-No person shall be deprived of his
life or personal liberty except according to
procedure established by law".
It is clear beyond the shadow of doubt that what this
Article protects is a right of every person in India,
whether he is an Indian citizen or not, to be dealt with in
accordance with law whenever a question of depriving him of
his life or personal liberty by executive authorities
arises. The law on the view adopted in A. K. Gopalan v. The
State of Madras(2), which was not questioned by anybody
before us on this
(1) A.I.R. 1976 SC 1207.
(2) [1950] S.C.R. 88.
583
aspect, was statutory law or "lex" and not "just" so far as
preventive detention, the very concept of which seems
opposed to normal notions of "jus", is concerned. If the
enforcement of rights conferred by Article 21 was suspended,
investigation of alleged violations of the statutory
protections is in abeyance because the guarantee given by
Article 21 is itself that of protection by statutory
provision only atleast as regards preventive detention.
The majority view, that the right to obtain a release on a
writ of Habeas Corpus against Executive authorities was
suspended, meant no more than that the use of Articles 32
and 226 only was suspended by the President against these
authorities. No question arose at all in that case of
depriving anyone of life itself without complying with law.
On the other hand, the Attorney General repeatedly said
there that criminal and civil laws, in general, and their
protections were not suspended at all. Deprivation of life
contrary to law was punishable murder or homicide not
amounting to murder just as it was before the Presidential
Order which made no difference here. Only the use of
Article 32 and 226 to enforce specified fundamental rights
against Executive authorities was suspended by the order
under Article 359. In fact, all the judges of this Court
held this. Nevertheless, certain interested persons, with
motives which could be presumed to be ulterior and
unhealthy, have continued to misrepresent to the public that
what the majority of Judges of this Court held was that
rights to life and liberty themselves were suspended. No
judge had held that. Speaking for myself, I would be
certainly shocked to hear that any judge or Court had or
could have, in the twentieth century, possibly held that.
All I can say to anyone who claims that any Judge of this
,Court has so held is to ask him to show me anything which
could possibly have this meaning.
It may be that some people, go on making assertions about
judgments of this Court without reading or understanding
them. But, the way in which this has been going on, as a
part of a consistent scheme to malign the Court and its
Judges, shows that their intention is to deliberately shake
the confidence of the public in this Court. In any ,case,
this would be the result if nothing is done by anyone to
check such a campaign of vilification.
I will only reproduce here three paragraphs from my very
long judgment on the case to show what we had held and what
the Attorney General had conceded. I said there
"Para 250 :Enforceability, as an attribute of
a legal right, and the power of the judicial
organs of the State to enforce the, right, are
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exclusively for the State, as the legal
instrument of Society, to confer or take away
in the legally authorised manner. It follows
from these basic premises of our
Constitutional jurisprudence that Courts
cannot, during a constitutionally enjoined
period of suspension of the enforceability of
Fundamental Rights through Courts, enforce
what may even be a "fandamental right" sought
to be protected by Part III of the
Constitution. The Attorney General
584
has, very fairly and rightly, repeatedly
pointed out that no substantive right, whether
declared fundamental or not, except the
procedural rights converted into substantive
ones by Article 32, could be suspended. Even
the enforcement in general, of all such rights
is not suspended. Only the enforcement of
specified rights through Courts is suspended
for the time being.
Para 251 : The enforceability of a right by a
Constitutionally appointed judicial organ
has necessarily to depend upon the fulfillment
of two conditions : firstly, its recognition
by or under the Constitution as a right; and,
secondly possession of the power of its
enforcement by the judicial organs. Now, if a
right is established on facts, as a right, it
will certainly satisfy the first condition.
But if the right is unenforceable, because the
power of its enforcement by Courts is
constitutionally suspended or inhibited, for
the duration of the Emergency, its mere
recognition or declaration by Courts, either
as a right or as a fundamental right, could
not possibly help a petitioner to secure his
personal liberty. Article 226 of the
Constitution is not meant for futile and
unenforceable declarations of right. The
whole purpose of a writ of Habeas Corpus is to
enforce a right to personal freedom after the
declaration of a detention as illegal when it
is so found upon investigation.
Para 254 : In this country, the procedure for
deprivation as well as enforcement of a right
to personal freedom is governed partly by the
Constitution and partly by ordinary statutes.
Roth fall within the purview of ’procedure’.
Article 21 of the Constitution guarantees,
though the guarantee is negatively framed,
that ’No person shall be deprived of his life
or personal liberty except according to
procedure established by law’. If an
enforcement of this negatively framed right is
suspended, a deprivation contrary to the
prescribed procedure is not legalised. The
suspension of enforcement does not either
authorise or direct any authority to violate
the procedure. It has to be clearly
understood that what is suspended is really
the procedure for the enforcement of a right
which could be said to flow from the
infringment of a statutory procedure. If the
enforcement of a right to be free, resulting
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derivatively-from both the Constitutional and
statutory provisions, based on an infraction
of the procedure, which is statutory in cases
of preventive detention, is suspended, it
seems to me to be impossible to lay down that
it becomes enforceable when that part of the
procedure which is mandatory is violated but
remains unenforceable so long as the part of
the procedure infringed is directory. Such a
view would, in my opinion, introduce a
distinction which is neither warranted by the
language of Article 359 of the Constitution
nor by that of the Presidential Orders of
1975. If the claim
585
to assert the right is one based on violation
of procedure, the degree of violation may
affect the question whether the right to be
free is established at all, but it should not,
logically speaking, affect the result where
the enforcement of the right, even in a case
in which it has become apparent, is
suspended".
It has been made, absolutely clear in the passages cited
above that no fundamental right itself was suspended by a
Presidential Order under Article 359. What was held to have
been suspended was the power of the Court itself to enforce
the widely conferred right of personal liberty under Article
21 by resorting to Articles 3.2 and 226 against Executive
authorities. On this aspect of the case-that the power of
the Court to enforce fundamental constitutional rights was
suspended-Khanna, J., stated as one of the conclusions of
his judgment
"A Presidential Order under Article 359(1) can
suspend during the period of emergency only
the right to move any Court for enforcement of
the fundamental rights mentioned in the
Order."
This could only mean that the power of the Court to enforce
specified fundamental rights was suspended. In the course
of the judgment, Khanna J., expressed the view (para 15) :
"The effect of the suspension of the right to
move any court for the enforcement of the
right conferred by Article 21, in my opinion,
is that when a petition is filed in a Court,
the Court would have to proceed upon the basis
that no reliance can be placed upon that
article for obtaining relief from the court
during the period of emergency."
Therefore, it could be said that this statement of the
position by Khanna J. himself was, roughly speaking, an
expression of a unanimously held view of all the Judges.
Indeed, in the passages, Quoted already from my judgment,
the effect is shown to be less drastic for the citizen than
it is given in the last quoted passage. I have repeatedly
pointed out in my judgment that it is not so much the right
of the citizen’to move the court as the power of the court
to enforce fundamental rights which is, in substance,
temporarily suspended.
Neither the validity of the Presidential Order nor of the
Constitutional amendment, by which this Court’s very
jurisdiction to entertain the question of validity of the
Presidential Order "on any ground" was declared to be non-
existent, was questioned by any counsel before this Court
either for conflict with the basic structure of the
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Constitution or for mala fides of any sort (legal or
factual). Yet, without questioning the validity of the
Presidential Order or even the Constitutional amendment
barring judicial scrutiny of grounds of its validity, this
Court was expected, to judge from the tenor of the attacks
made upon the judgment of this Court, without indicating
where the Court’s reasoning went wrong, to hold that the
emergency itself was unconstitutional.
586
Even Mr. Justice Khanna did not hold that because no
materials were placed and no grounds urged before the Court
to enable it to hold that the declaration of Emergency was
itself invalid. The obvious suggestion and threat held out
to Judges of the Court is that they will be maligned and
punished if they could not in future so. decide cases as to
protect the interests or voice the opinions of whatever
political or other sort of group those who have signed the
document mentioned in the newspaper may represent. No more
insidious a danger to judicial independence could exist. It
implies nothing more nor less than blackmail to demoralise
upright Judges. People who could indulge in it certainly do
not represent those who. say that law, as found in the
Constitution,must be always declared by Judges fearlessly
and honestly. I cannot conceive of a grosser or clearer
case of contempt of Court than the implications of this
document, if we were to think about them, would constitute.
To blame and abuse the Judge after shutting one’s eyes to
what may be the shortcomings of his own case or the law, as
it exists, may be even forgiven in a certain type of
litigant blinded by personal feelings. But, if those. who
purport to act pro bono publico to protect the Constitution
and the law conduct themselves in this fashion, and, if
responsible daily newspapers publish what could be regarded,
in addition to being defamatory and abusive, as gross
contempts of this Court, one wonders whether time has not
come to remind such people of what the law says about it and
what their duties axe to the Court, to the public, and to,
the individuals maligned.
Although there was no difference of opinion at all between
the Judges of this Court in Shukla’s case that the
Presidential Order under Article 359 of the
Constitution did suspend enforcement of fundamental rights
including the right to personal liberty-a right which had
been given a very comprehensive meaning and scope by a
series of decisions of this Court from Gopalan’s
case through Satwant Singh’s(l) and Kharak Singh’s
(2) cases upto Golak Nath’s cases-yet, there was a
difference of opinion between the majority opinions of
Judges of this Court and the view of Khanna J. on
the question whether any statutory rights
remained, apart from the fundamental right to personal
liberty, which could still be enforced during the
emergency, and, if so, how. Mr. Justice Khanna said
that there were such "statutory" rights which could
be enforced. But, the majority of Judges of this Court could
not see how even a distinction between the fundamental
rights topersonal liberty and a statutory right to,
personal liberty could possibly help a detenu in
preventive detention when the fundamental right topersonal
liberty protected by Article 21 itself guaranteed protection
by "law" and this "law " according to Gopalan’s case
was lex or only statutory law where ‘ preventive
detention was involved as it was in the Habeas
Corpus cases-. If the enforcement of that protection of
personal Liberty by statutori law was specifically suspended
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by the Presidential Order how did any right of enforcement
of the statutory protection to personal freedom still remain
active ? To say that it did
(1) [1967] (3) S.C.R. 525.
(2) [1964] (1) S.C.R. 332.
587
seem an obvious contradiction to the majority. Moreover,
the distinction made by Khanna J. lost all its importance
when the majority confined the suspension of enforcement
only to what could be I done under Articles 226 and 32 of
the Constitution. As is clear from the passages cited above
from my judgment in Shukla’s case, the Attorney General had
conceded that the statutory protections surrounding life and
liberty, outside Articles 226 and 32 of the Constitution,
were not suspended at all and could be enforced. This meant
that everyone, whether an officer or a dignitary of State,
such as a Minister, could be prosecuted for murder or for
illegal and malicious confinement of anybody just like any
ordinary alleged offender. The kind of evidence which could
not be given in proceedings under either Article 32 or
Article 226 could be put forth in other types of legal
proceedings.
One wonders whether it is an exhibition of dishonesty or of
real inability to understand what this Court had clearly and
actually held when some people go on suggesting that this
Court could and did that the Executive authorities could do
whatever they might like to do to destroy life and liberty
but Courts will give no relief or redress, due to the
Emergency, even if cases failing outside the area of
"preventive detention", where release through writs of
Habeas Corpus was suspended, were brought before them. In
any case, such assertions are gross distortions of what this
Court actually held in Shukla’s case (supra).
In Shukla’s case (supra), I pointed out that, although, for
reasons which were outside the purview of judicial scrutiny,
Courts had been deprived of the power to test preventive
detentions by applying norms of-"judicial justice", yet, the
duties of the Executive were not diminished but were
enhanced on that account so that the Executive must see that
the detenu gets justice at its hands. I said there(1) (at
p. 1315) :
"It appears to me that it does not follow from
a removal of the normal judicial
superintendence, even over questions of vires,
of detention orders, which may require going
into facts behind the returns, that there is
no Rule of Law during the emergency or that
the principles of ultra vires are not to be
applied at all by any authority except when,
on the face of the return itself, it is
demonstrated in a Court of Law that the
detention does not even purport to be in
exercise of the executive power or authority
or is patently outside the law authorising
detention. It seems to me that the intention
behind emergency provisions and of the Act is
that, although such executive action as is not
susceptible to judicial appraisement, should
not be subjected to it, yet, it should be
honestly supervised and controlled by the
hierarchy of executive authorities themselves.
It enhances the powers and, therefore, the
responsibilities of the Executive."
It is surprising that even passages indicating that,
although, judges expressing the majority view in Shukla’s
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case (supra) did not like
(1) A.I.R. 1976 S.C. 1315.
12-1146 SCI/77
588
measures of preventive detention without trial even during
an Emergency, yet, they were bound by the Constitution and
the, law to perform the unpleasant duty to declare what the
law was and not to run away from it, are cited sometimes to
indicate that judges, for Some reason, are partial to
repressive laws. In fact, I quoted a long passage from
Erskine May’s History of England to show the plight of
persons detained on suspicion. The suggested inference was
that such powers, unless duly supervised, are bound to be
misused. It was impossible for the Court to do anything
more than to warn the Executive of the dangers of arrogating
unto itself so great a share of power over the person of the
individual citizen.
It is true that this Court held that preventive detention
was practically removed from judicial supervision during an
Emergency. The common statement of a conclusion at the end
of the judgments in the Habeas Corpus cases, based on the
majority view but signed by all the Judges, including Khanna
J., was perhaps misleading as it gave the impression that no
petition at all would he under either Article 226 or 32 to
assert the right of personal liberty because the locus
standi of the citizen was suspended. Had a review petition
been filed before us I would have certainly made it clear
that the Statement of a conclusion reached by the majority
did not accurately set out atleast my conclusion which is
found at the end of my judgment. It seems to me that the
majority conclusion is rather loosely and vaguely expressed
at the end of our judgments. A legitimate criticism could,
therefore, be that this Court should draft and state its
majority conclusions better. However, a reading of all the
judgments would have revealed that what was really meant by
stating the conclusion as it was done was nothing more than
that the power of Courts under article 226 to afford relief
was suspended but the power to entertain petitions was not
suspended. The term ’locus standi, with regard to what was
suspended, was used because of a similar use of it in
previous judgments of this Court. Speaking for myself, I
made it quite clear that I did not understand those
judgments as laying down anything more than that the power
of the Court to afford relief was suspended so that hearings
of cases could be resumed after the suspension was lifted.
And, the practice followed by this Court, during the
Emergency, was also to suspend proceedings or to keep them
in cold storage, so as to revive them later, but not to
dismiss them outright for want of ’locus standi’ of
petitioners.
Some people have said that an exception should have been
made in cases of mala fide detentions falling outside the
statutory and emergency provisions. I may quote here the
exact words used by me with regard to allegations of ’malice
in fact’ which, even apart from emergency provisions, are
not generally triable in summary inquiries into causes of
detention upon Habeas Corpus petitions but left to suits or
other proceedings for false imprisonment. I held that this
right was intact even during the emergency. I said there :
"As regards the issue of ’malice in fact, as I
have already pointed out, it cannot be tried
at all in a Habeas Corpus proceeding although
it may be possible to try it in a regular
5 89
suit the object of which is not to enforce a
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right to personal freedom but only to obtain
damages for a wrong done which is not
protected by the terms of Section 16 of the
Act. The possibility of such a suit should be
another deterrent against dishonest use of
these powers of detaining officers."
Some people mention the English decision of the House of
Lords in Liversidge v. Anderson(1) to support the view that
an issue of "malice in fact" should have been left open by
the Supreme Court for decisions by the Courts. This assumes
that the majority in Shukla’s case did not leave that course
open for suits for damages for false imprisonment just as
was the position in Liversidge’s case where, although, there
was nothing equivalent to Section 16A(9) of the Act, which
could prevent English Courts from going into the grounds,
yet, the House of Lords held, practically as a matter of
public policy, that the mere belief or satisfaction of the
Secretary of State was enough and could not be challenged
and he could not be asked to give particulars for his
belief. In fact, the British Courts have gone much further
than we did. The view of the best legal circles in England
was, I have heard, that the majority view in Shukla’s case
is absolutely correct because it accords with principles on
which law relating to ,emergencies in even the most
democratic countries is based. According to those
principles the Constitution says to the Judicature on
matters covered by Emergency Provisions : "Hands off The
executive knows more and understands better what is to be
done here. You are not judges of these matters." That is
evident also from what our ,Constitution says. The judges
cannot be held responsible for what the Constitution
contains. That is the responsibility of those who made it.
Others have the power to change it. The judges can only
declare what the Constitution contains and What its meaning
and effects are. Beyond that come the function of the
lawmakers who can set right the law if it ,is defective or
wanting in any respect.
The constitutional position regarding Emergency provisions
and the principle underlying them were well stated by Khanna
J. in Shukla’s case (supra) as follows (para 201) :
"No one can deny the power of the State to
assume vast powers of detention in the
interest of the security of the State. It may
indeed be necessary to do so to meet the peril
facing the nation. The considerations of
security of the State must have a primacy and
be kept in the forefront compared to which the
interests of the individuals can only take a
secondary place. The motto has to be "who
lives, if the country dies". Extraordinary
powers are always assumed by the government in
all countries in times of emergency because of
the extraordinary nature of the emergency.
The exercise of the power of detention, it is
well settled, depends upon the subjective
satisfaction of the detaining authority and
the courts can neither act as courts of appeal
over the decisions of the detaining authority
nor can they substitute their own opinion for
that of the authority regarding the necessity
of detention."
(1) [1942] A.C. 204.
590
Even in times when there was no declaration of Emergency and
no amendments had been made in the law so as to deprive
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courts of power to look into the grounds of detention,
claims for relief on grounds of either "malice in fact" or
"malice in law" could be judged only by looking at the
grounds of detention in proceedings under either Article 32
or 226. But, as the majority of Judges in Shukla’s case
pointed out, Section 16A, sub-section (9) was added during
the emergency so that its validity could not be questioned
for violation of fundamental rights because Article 358 of
the Constitution, which is absolutely clear on the point,
made such a course impossible. Section 16A(9), therefore,
also deprived Courts of powers to find out how detention was
for a collateral purpose or suffered from even what is
called "malice in law". Hence, there was no alternative
before the Court except to say that, due to insurmountable
obstacles placed by constitutional provisions and statutory
law made during the emergency declared and protected by
constitutional provisions, a High Court could not
investigate the legality of a detention under Article 226 or
32 of the Constitution in such a way as to enforce a
fundamental right against an executive authority empowered
to pass and actually passing a prima facie valid detention
order. But, that did not bar other legal proceedings men-
tioned by me specifically in Shukla’s case (supra) which
were still open to persons aggrieved even by prima facie
valid detention orders, although what could be done under
Article 32 or 226 in normal times could, not be achieved by
other proceedings.
Indeed, I pointed out in Shukla’s case (supra) that,
although High Courts were disabled by section 16A(9) of the
Maintenance of Internal Security Act, which was added
during the emergency, from calling for and examining grounds
of detention, yet, if, upon the face of an order of
detention, it appeared that it was defective for some
reason, or, on the return filed in reply to a petition, it
appeared that there could be or was no detention order, such
as the one required by Statute, a writ of Habeas Corpus
could be issued to release the detenu as if he was in
private detention and not in "purported" detention of an
executive authority,-even "Purported" orders were
protected by statute. I indicated how the writ of Habeas
Corpus lies not only against executive authorities but also
against private individuals. Hence if a detention was, on
the face of the detention order, without a further
investigation which could not, obviously, take place without
grounds, utterly illegal detention, ordered by an officer
with no authority to order it, would be on par with a
detention by a private individual against whom a writ of
Habeas Corpus would go. In fact, this was the only way in
which what- Mr. Justice Khanna seemed to have had in view
when he spoke of statutory rights against actions outside
the Act and the emergency provisions could be enforced
despite the Presidential Orders of 1975 and statutory
amendments. The suspension operated only against purported
action of executive authorities. The fundamental rights
were also guaranteed against acts of authorities which were
parts of the State". Those laws which recognise and
protect the rights of the individual to be free from illegal
confinement, from assault, and from murder, could, on the
very concessions made by the Attorney General, be invoked by
the aggrieved citizen even during the period of emer-
591
gency against private persons. Such rights are not given
against executive authorities, as such, but against an
wrongdoers, whoever they may be, operating outside the
protected area. Therefore, whenever it was evident, on the
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face of the "return’ to a notice by the Court, that a
detaining officer was acting outside the protected field,
release could be ordered. This is what I specifically held.
And, there seemed nothing in the view- expressed by other
learned Judges contrary to what I said on this aspect.
With regard to the power of High Courts to issue writs of
Habeas Corpus even in-cases of alleged preventive detention
by officers of State I specifically said there (at p. 1311)
:
"Detentions which not only do not but could
not possibly have any apparent, ostensible, or
purported executive authority of the State
whatsoever to back them, could be equated with
those by private persons. The suspension of
enforcement of specified fundamental rights
operates only to protect infringements of
rights by the State and its authorised agents,
acting or purporting to act in official
capacities which they could and do hold. A
claim to an order of release from such a
patently illegal detention, which is not by
the State or on its behalf, could be enforced
even during the current Emergency. But, there
is no such case before us."
With regard to one of the cases cited before us, State of
Madhya Pradesh v. Thakur Bharat Singh(1), it was pointed out
that Shah J., had upheld the view that, although, the
validity of a provision empowering preventive detention
enacted during the emergency could not be challenged due to
Article 358, yet, if it was made before the declaration of
emergency, it could be so challenged and declared void.
Commenting on this case, the majority view, expressed by me,
was (at p. 1312) :
"I do not think that there is any such case,
before us. It seems to me to be possible to
distinguish the case on the ground that it was
a case of patent voidness of the order passed
so that the principle of-legality, which is
not suspended, could be affirmed even apart
from enforcement of a specified fundamental
right, I think it was placed on such a footing
by Shah J., speaking for this Court."
Similarly, all previous cases of this Court were
distinguished by references to the differently framed
Presidential Orders and statutory provisions which were
applicable to, their facts, but, the changed wording of the
emergency orders of 1975 and amendments of the Maintenance
of Internal Security Act intended to oust the power of
Courts to Courts quite powerless to act under Article 226.
Hence, there was no use in saying that nine High Courts had
taken some other view. The various High Courts had, upto
the stage when cases were brought up
(1) [1967] (2) S.C.R. 454.
592
here, merely repeated what this Court had held in other
circumstances with reference to other laws. Most of them
had not decided the question of validity of section 16A(9)
of the Act by the time the cases: came up before this Court
at an intermediate stage.
If the minority view of Khanna J. had prevailed, some more
time would have been spent in the High Courts up-on further
enquiries which could not proceed far for want of grounds of
detention, but, the writ petitions would have been
ultimately dismissed in an those cases where there were
prima facie valid detention orders as there seemed to be in
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all cases which came up before this Court. And, in those
cases where there were no such prima facie valid detention
orders, the detenus, could be released even upon the
reasoning of the majority if the view, as explained above,
and, in greater detail in my judgment on Shukla’s case
contained the true ratio of the majority decision.
The enquiries made by the High Courts could not be more than
very superficial if grounds of detention could not be sent
for and persued by them because section 16A(9) introduced by
Act No. XIV of 1976 was valid. Most of the High Courts had
not ruled upon the validity of this provision. One of the
grounds on which this Court had entertained the appeals by
the State authorities at an intermediate stage was that, in
view of Section 16A(9) of the Act, further enquiry may not
be called for in the High Courts. if the provision was
valid. Khanna J., thought that the question of validity of
this provision should be decided by this Court only after an
the High Courts had determined it. The majority acted on the
assumption that, after entertaining the appeals and hearing
very full and long arguments on it, there was a duty cast on
this Court to give a decision on this matter also.
Speaking for myself, I do not think that any other
conclusion except the one which the majority really reached
in those cases before sending them back to the High Courts
for disposal according to law, was legally or
constitutionally possible on the materials placed and
arguments advanced before us. This was that the enforcement
of the right to personal liberty, by the issue of writs of
Habeas Corpus, against prima facie valid detention orders of
executive authorities of the State, was suspended during the
emergency. Facts of each case were not before this Court as
no facts could be placed before it at that state. And,
grounds of detention-the main legal weapon of attack upon
detention orders--could not be there at all at any stage
before the High Courts due to Section 16A(9) of the Act. On
the last mentioned question, four Judges of this Court
decided that the Constitutional validity of the provisions
could not be challenged during the emergency whereas one
learned Judge (Khanna J.) held that all the High Courts
should first decide that matter themselves so that it could
come up before us again at a later appellate stage.
Postponing decision of this Court on this question after
hearing such full arguments was neither necessary nor
helpful to detenus. The majority acted on the assumption
that to postpone decision on what was so clearly covered by
Article 358 could only prolong the agony of those who wanted
justice according to law. And, if this question was decided
against the detenus and "enforcement" of the fundamental
right to personal freedom as protected by
5 93
statutory provisions, was suspended what was there before
the Courts to enforce under article 226 and how was it to be
done ? nose who live in the world of law as it exists and
not in one of romantic dreams could only give the answers
which the majority of judges gave in Shukla’s case (supra).
Even if Shukla’s case (supra) could be one in which two
views were possible on any question, I do not think that any
newspaper could be allowed to describe one of the two views
in the way in which signatories of the document cited in the
news item have chosen to do it by calling it a "misdeed" and
suggesting that Judges should have held what they could not
honestly believe to be correct in law. The signatories are
also reported to have said that Judges who gave such deci-
sions would be ’obstracised’ in other countries. Those who
drafted the document seemed to be aware of the perils of
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their irresponsible language. They, therefore, took shelter
behind some article in a foreign newspaper presumably based
on sources interested in distortion or no better informed
and with no better motives than those of the signatories of
the document quoted in the news item before us. However, as
two of my learned brethren are of the view that we should
ignore even such news items and not proceed further, I can
do no more than to state the reasons for my dissent before
signing a common order dropping these proceedings.
ORDER
In view of the majority opinion, the proceedings for
contempt against the editor of the Times of India are
dropped.
P.B.R. Proceedings dropped.
594