Judgement

GAJENDRAGADKAR, C.J.I.: Mr. K. Ananda Nambiar, who is a Member of Parliament, has been detained by the Government of Madras since the 30th December, 1964. On the 29th December 1964, an order was passed under R. 30 (1) (b) and (4) of the Defence of India Rules, 1962 in which it was stated that the Government of Madras were satisfied with respect to the petitioner K. Ananda Nambiar that with a view to preventing him from acting in any manner prejudicial to the Defence of India and the public safety, it was necessary to make an order directing that he be detained. The said order further directed that the petitioner should be arrested by the police wherever found and detained in the Central Jail, Tiruchirapalli. Though this order directed the detention of the petitioner in the Central Jail, Tiruchirapalli, it is common ground that he has been detained in fact in the Central Jail, Cuddalore. By his present writ petition (No. 47 of 1965) filed under Art. 32 of the Constitution, the petitioner challenges the validity of the said order of detention mainly on two grounds. He contends that R. 30. (1) (b) under which the impugned order has been passed is invalid and in the alternative, he argues that the impugned order is not valid, because it has been passed mala fide and is otherwise no justified by the relevant Rules.

2. Mr. R. Umanath, who is also a Member of Parliament, has been similarly detained by the order passed by the Government of Madras on the 29th December 1964 and in the same terms. He has also been detained not in the Central Jail, Tiruchirapalli, mentioned in the order, but in the Central Jail, Cuddalore, since the 30th December 1964. By his writ petition (No. 61 of 1965 the petitioner Umanath has raised the same points before us. Mr. Setalvad has argued the first point of law about the invalidity the relevant Rule, whereas Mr. Chatterjee has argued the other point relating to the invalidity of the impugned orders, on behalf of both the petitioners. To these two petitions are impleaded respondent No. 1, the Chief Secretary, Government of Madras, respondent No. 2, the Superintendent, Central Jail, Cuddalore, and respondent No. 3, the Union of India.

3. Before proceeding to deal with the points raised by the petitioners, it is necessary to consider the preliminary objection which has been urged before us by the learned Additional Solicitor-General who has appeared for respondent No. 3. He contended that the writ petitions are incompetent in view of the Order issued by the President on the 3rd November 1962. It will be recalled that on the 26th October 1962, the President issued a Proclamation of Emergency in exercise of the powers conferred on him by Cl. (1) of Art. 352 of the Constitution. This proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. Thereafter, two Orders were issued by the President, one of the 3rd November 1962 and the other on the 11th November 1962, in exercise of the powers conferred by Cl. (1) of Art. 359 of the Constitution. The first Order as amended by the later Order reads thus :-

"In exercise of the powers conferred by Cl. (1) of Art. 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 Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Cl. (1) of Art. 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

It may be added at this stage that Ordinance No. 4 of 1962 later became an Act called "The Defence of India Act, 1962 (Nos. 51 of 1962)". The argument is that the petitioners are admittedly detained under R. 30 (1) (b) of the Defence of India Rules, and so, the said Presidential Order is inevitably attracte