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 be det