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) 147
SUPREME COURT OF INDIA
J.C.Shah : J.R.Mudholkar : K.Subba Rao : Raghubar Dayal
Mohan Chowdhury: K.C.Dulia
Versus
Chief Commissioner, Union Territory Of Tripura: Chief Commissioner, Union Territory Of Tripura
Case No. : 15 of 1993
Date of Decision : 4/29/63
Advocates Appeared: Agrawal S.C. : Dhebar R.H. : Garg R.K. : Gupta S.V. : Prem D.R. : Ramamurthi M.K. : Rammurthi : Sachthey R.N. : Singh P.
Advocates:
D.R.Prem, M.K.RAMAMURTHY, P.SINGH, R.H.Dhebar, R.K.GARG, R.N.SACH, RAMMURTHI, S.C.AGRAWAL, S.V.Gupta
D.R.Prem, M.K.RAMAMURTHY, P.SINGH, R.H.Dhebar, R.K.GARG, R.N.SACH, RAMMURTHI, S.C.AGRAWAL, S.V.Gupta
Under Article 359, the President can suspend the right to move the court for enforcing fundamental rights, removing the petitioner's locus standi to challenge the detaining law's validity. Presidential Orders are "instruments" under the General Clauses Act, remaining effective after the repeal of the underlying Ordinance by a re-enacting Act.
Headnote:(A) Constitution of India - Articles 32, 21, 22, 352, 358, 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 - Emergency - Suspension of fundamental rights - Right to move the court for enforcement of rights - Locus standi - Effect of repeal of Ordinance by an Act - The right to move the court for the enforcement of fundamental rights is itself a guaranteed right, but Article 32(4) provides that this right can be suspended in accordance with the Constitution. Under Article 359(1), the President may suspend the right to move any court for the enforcement of specific fundamental rights. Such an order does not suspend the court's power to issue writs, but suspends the petitioner's right to move the court, thereby depriving the petitioner of locus standi to enforce those rights or challenge the vires of the legislation under which they were deprived. (Paras 6, 7, 8)
(B) General Clauses Act, 1897 - Section 8 - Interpretation of "instrument" - A Presidential Order issued in exercise of constitutional powers constitutes an "instrument" within the meaning of Section 8 of the General Clauses Act. Where an Act repeals and re-enacts a provision of a former Ordinance, references in any other instrument to the repealed provision shall be construed as references to the provision so re-enacted. Consequently, an order suspending the right to move the court based on a repealed Ordinance continues to operate if the Ordinance is replaced by an Act with a saving clause. (Paras 10, 11)
Facts of the case:
A person was detained under the rules of a Defence Ordinance promulgated during a national emergency. The President issued an order under Article 359 suspending the right to move any court for the enforcement of rights under Articles 21 and 22 of the Constitution for persons deprived of such rights under the said Ordinance or rules made thereunder. The petitioner filed a petition under Article 32 for a writ of habeas corpus. During the proceedings, the Ordinance was repealed and replaced by an Act of Parliament which provided that any rules made or action taken under the Ordinance would be deemed to have been made or taken under the Act.
Findings of Court:
The petition is not maintainable. The President's Order effectively suspended the petitioner's right to move the court for the enforcement of Articles 21 and 22. The subsequent repeal of the Ordinance by an Act did not terminate this suspension because the legal fiction created by the saving clause of the Act and Section 8 of the General Clauses Act ensured that the Presidential Order continued to govern detentions made under the re-enacted law.
Issues: Whether the right to move the court under Article 32 can be suspended under Article 359; whether a petitioner has locus standi to challenge the validity of a detaining Ordinance when the right to move the court is suspended; and whether the repeal of the Ordinance by a subsequent Act affects the validity of the President's Order of suspension.
Ratio Decidendi: The court ruled that Article 359 allows the suspension of the right to move the court, which removes the petitioner's locus standi to challenge the vires of the legislation. Furthermore, a Presidential Order is an "instrument" under the General Clauses Act; thus, references to a repealed Ordinance in such an order are construed as references to the re-enacting Act, maintaining the suspension of the right to move the court.
Result: Application held to be not maintainable and dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
- statutory interpretation
Table of Contents
2. Maintainability of Article 32 petition during Emergency — Suspension of rights under Article 359 — Effect of repeal of Ordinance by subsequent Act on suspension order. (Para 5 )
3. Distinction between court's power to issue writs and citizen's right to move court — Application of General Clauses Act to constitutional orders. (Para 6 , 7 , 8 , 9 , 10 , 11 )
4. Presidential order under Article 359 suspends the right to move court for enforcement of specific fundamental rights, removing the petitioner's locus standi. (Para 7 , 8 )
5. Petition held not maintainable and dismissed. (Para 11 )
6. Does a Presidential Order under Article 359 suspend the court's power to issue writs?
No. The court's power to issue a writ of habeas corpus remains intact; however, the citizen's right to move the court for the enforcement of the specified fundamental rights is suspended, thereby removing the petitioner's locus standi. (Para 7 )
7. Can the validity of an Ordinance be challenged if the right to move the court is suspended under Article 359?
No. To investigate the validity of an ordinance or act, the person moving the court must have locus standi. If the right to move the court is suspended, the petitioner lacks the standing to challenge the vires of the legislation. (Para 8 )
8. What is the effect of the repeal of an Ordinance by a subsequent Act on a Presidential Order that referred to the Ordinance?
Under Section 8 of the General Clauses Act, a Presidential Order is considered an instrument. References to a repealed enactment in such an instrument are construed as references to the re-enacted provision, ensuring the suspension of rights continues. (Para 10 , 11 )
B.P.SINHA, C. J.
(1) ON 26/10/1962, 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 8/11/1962, and was approved by the Rajya Sabha on 13/11/1962, and by the Lok Sabha on 14/11/1962. 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-Octobcr 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 5/11/1962. 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 de fence, the public safety, the maintenance of public order, Indias 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:- x x x (b) directing that he be detained; x x x During the operation of the Proclamation of Emergency the, President issued, on 3/11/1962, 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 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 snspended for the peried during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on the 26/10/1962, 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 20/11/1962
"NO. F. 22 (59)-PD/62 TRIPURA ADMINISTRATION OFFICE OF THE CHIEF COMMISSIONEN. Agartala, 20/11/1962. ORDER WHEREAS, I am satisfied 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 prejudiclal to the defence of India and Civil defence, public safety, the niaintenance of public order, Indias relation with foreign powers and the maintenance of peaceful condition 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 detained in the central Jail at Agartala until further orders. Sd/. (S. P. Mukerief) Chlef Commissioner, Tripura,"
(3) BY a subsequent order dated 3/12/1962, of the Chief Commissioner Tripura, the petitioner was transferred from Agartala central jail to Hazaribagh central jail. T
