1. Detention under Defence of India Rules during Emergency — Petition for writ of Habeas Corpus under Article 32 — Suspension of rights under Article 359. (Para 1 , 2 , 3 , 4 )
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1963 Supreme(SC) 149
SUPREME COURT OF INDIA
29th April, 1963
B.P. SINHA, C.J.I., K. SUBBA RAO, J.C. SHAH, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
Mohan Chowdhury, Petitioneer
Versus
The Chief Commissioner, Union Territory of Tripura, Respondent; K. C. Dulia on behalf of Raj Kumar Vohra-detenu, Intervener.
Habeas Corpus Petition No. 15 of 1963.
Advocates Appeared
Mr. R. K. Garg, Advocate (amicus curiae), for Petitioner; Mr. S. V. Gupta, Additional Solicitor- General of India, and Mr. D. R. Prem, Senior Advocate, (M/s. R. H. Dhebar and R. N. Sachthey, Advocates, with them), for Respondent; M/s. S. C. 175 Agarwal, R. K. Garg, M. K. Ramamurthi and P. Singh Advocates of M/s. Ramamurthi and Co., for Intervener.
Under Article 359, a Presidential Order can suspend a citizen's right to move the court for enforcing fundamental rights. This removes the petitioner's locus standi to challenge the legislation's validity, although the court's inherent power to issue writs remains intact.
Headnote:(A) Constitution of India - Articles 21, 22, 32, 352, 358 and 359 - Defence of India Ordinance, 1962 - Defence of India Rules, 1962 - Rule 30 - Defence of India Act, 1962 - Section 48 - General Clauses Act, 1897 - Section 8(1) - Suspension of fundamental rights during emergency - Right to move the court for enforcement of rights under Articles 21 and 22 suspended by Presidential Order - Right to move the court under Article 32 is itself a guaranteed right but can be suspended in accordance with the Constitution (Para 6) - Presidential Order under Article 359(1) suspends the petitioner's right to move the court, but not the court's power to issue writs; consequently, the petitioner lacks locus standi to enforce rights or challenge the vires of the legislation (Paras 7, 8).
(B) General Clauses Act, 1897 - Section 8(1) - Interpretation of "instrument" - A Presidential Order issued under constitutional powers constitutes an "instrument" - Where an ordinance is repealed and re-enacted by an act, references in an instrument to the repealed ordinance are construed as references to the re-enacted provision (Paras 10, 11).
Facts of the case:
A person was detained under rules promulgated under an emergency ordinance. The President had issued an order suspending the right to move any court for the enforcement of rights conferred by Articles 21 and 22 of the Constitution for persons deprived of such rights under the said ordinance or rules. The petitioner filed a petition for a writ of habeas corpus under Article 32. Subsequently, the ordinance was repealed and replaced by an act which saved actions taken under the ordinance.
Findings of Court:
The petition is not maintainable as the right to move the court for the enforcement of the specified fundamental rights was suspended by the Presidential Order. The repeal of the ordinance did not terminate the suspension because the replacing act and the General Clauses Act ensured the continuity of the legal fiction.
Issues: Whether the right to move the court under Article 32 can be suspended under Article 359; whether the petitioner has locus standi to challenge the validity of an ordinance when the right to move the court is suspended; and whether the repeal of the ordinance by an act affects the operation of the Presidential Order.
Ratio Decidendi: The court held that while the power of the court to issue writs remains, the right of a citizen to move the court for the enforcement of Articles 21 and 22 can be suspended under Article 359(1). Without the right to move the court, the petitioner lacks the locus standi to challenge the vires of the legislation. Additionally, a Presidential Order is an "instrument" under the General Clauses Act, and thus references to a repealed ordinance are read as references to the replacing act.
Result: Application dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
- statutory interpretation
Table of Contents
2. Whether the right to move the Court under Article 32 is suspendable under Article 359 and whether repeal of the Ordinance renders the suspension order inoperative. (Para 5 )
3. Presidential Order under Article 359 suspends the petitioner's locus standi to move the Court for enforcement of Articles 21 and 22, while the Court's power remains intact. (Para 6 , 7 , 8 )
4. A Presidential Order under Article 359(1) suspending the right to move any court for the enforcement of specific fundamental rights removes the petitioner's locus standi. (Para 7 , 8 )
5. Petition held not maintainable and dismissed. (Para 11 )
6. Can the right to move the Supreme Court under Article 32 be suspended?
Yes. Article 32(4) provides that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution, such as through a Presidential Order under Article 359(1). (Para 6 , 7 )
7. Does a Presidential Order under Article 359 suspend the Court's power or the citizen's right?
It suspends the citizen's right to move the court for the enforcement of specific fundamental rights, thereby removing their locus standi, but it does not suspend the Court's inherent power to issue writs. (Para 7 )
8. If an Ordinance is repealed and replaced by an Act, does a Presidential Order referring to the Ordinance remain effective?
Yes. Under Section 8(1) of the General Clauses Act, references in an instrument to a repealed enactment are construed as references to the re-enacted provision, provided the new Act saves actions taken under the repealed Ordinance. (Para 9 , 10 , 11 )
Judgment
SINHA C.J.I. - On October 26, 1962, the President having been satisfied that a grave national emergency exists, whereby the security of India or any part of the territory thereof is threatened by the Chinese aggression issued a Proclamation declaring the Emergency, under Art. 352 of the Constitution. That declaration of emergency was laid before both Houses of Parliament on November 8, 1962, and was approved by the Rajya Sabha on November 13, 1962, and by the Lok Sabha on November 14, 1962. After the Proclamation of Emergency as Parliament was not in session and as the president was satisfied that circumstances existed which rendered it necessary for him to take immediate action for exercise of the powers conferred by cl. (1) of Art. 123 of the Constitution, he promulgated the Defence of India Ordinance (IV of 1962) on the same date - October 26, 1962. By S. 3 of the Ordinance, the Central Government has been empowered to make rules as appear to be necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community, by notification in the official gazette. In exercise of those powers, the Central Government promulgated the DEFENCE OF INDIA RULES , 1962, by notification in the Official Gazette Extraordinary dated November 5, 1962. The relevant portion of R. 30 is as follows:
"The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India s relations with foreign powers, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations, it is necessary so to do, may make an order :-
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(b) directing that he be detained;
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During the operation of the Proclamation of Emergency, the President issued, on November 3, 1962, the following Order suspending the right to move any Court for the enforcement of rights conferred by Arts. 21 and 22 of the Constitution:
"In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any-court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder."
2. In exercise of the power conferred by R. 30 aforesaid of the DEFENCE OF INDIA RULES , the Chief Commissioner of Tripura issued an order of detention in respect of the petitioner on November 20, 1962.
"No. F. 22 (59) - PD/62
TRIPURA ADMINISTRATION
OFFICE OF THE CHIEF COMMISSIONER
Agartala,
November 20, 1962.
RIGHT TO MOVE SUPREME COURT FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS IS ITSELF A FUNDAMENTAL RIGHT GUARANTEED BY ARTICLE 32—BUT CLAUSE (4) PROVIDES THAT RIGHT GUARANTEED COULD BE SUSPENDED IN ACCORDANCE WITH PROVISIONS OF THE CONSITITUTION
ORDER
WHEREAS, I am satisifed that Shri Bipul alias Mohan Chaudhry s/o Sri. Bamala Charan Chaudhry of Sutaimura P. S. Bisalgarh should be detained with a view to preventing him/her from acting in any manner prejudicial to the defence of India and Civil defence, public safety, the maintenance of public order, India s relation with foreign powers and the maintenance of peaceful conditions in Tripura;
Now, therefore, in exercise of the powers conferred by Rule 30 of the DEFENCE OF INDIA RULES , 1962 read with sub-rule (11) of Rule 2 of the aforesaid Rules and all other powers enabling in that behalf, I hereby direct that the aforesaid person
