During an emergency, Parliament has the power to make laws which it would not have during a period when there is no emergency, including the power to define essential commodities and prejudicial acts.

( 1 ) THIS is an application under Article 228 of the Constitution of India for determination of several constitutional questions raised in paragraph 10 of the petition.

( 2 ) THE petitioners are 158 in number against whom proceedings were started under Rule 41 (5) read with Rule 41 (1) (a), Rule 35 (3) and Rule 36 (4) of the Defence of India Rules, 1962. They were all workmen of Shri Luxmi Flour Mills Ltd. , 243, Upper Chitpore Road, Calcutta. The complaint against them was that they had squatted outside the main gate and rear entrance of the said Mill in order to prevent anybody from going in or coming out of the said Mill premises and had refused to allow others to lift 27,000 mds. of finished wheat products for dispatch by trucks and rail with the result that there was every chance of the said stock getting rotten. The complaint was taken by a Presidency Magistrate of Calcutta who overruled the preliminary objections raised before him on behalf of the present petitioners.

( 3 ) IN the petition filed in this Court the points formulated for determination are : (1) "whether wheat or wheat products are essential commodity as defined in sub-rule (6) of 4 35 of the Defence of India Rules, 1962, and if so, whether such a definition is contrary to the provision of Article 369 and item 33, List 3, Schedule 7 of the Constitution of India, notwithstanding the fact that there is no notified order by the Central Government to the effect. " (2) "whether the prejudicial act referred to in Rule 41 (1) (a) of the Defence of India Rules, 1962, is in violation of Article 14 as there is no reasonable basis for such classification. " (3) "whether the prejudicial act as referred to in Rule 41 (1) (a) of the Defence of India Rules, 1962, suffers from the vice of delegated legislation inasmuch as it arms the executive authority or any person to avail to the machinery under the Rules and such action is a usurpation of essential legislative functions. "

( 4 ) THE petitioners contend that wheat and whet products are not essential commodities as they are not foodstuffs within the meaning of clause (b) of item 33, List 3 of the 7th Schedule to the Constitution, that the definitions of essential commodity in sub-rule (5) of Rule 35 of the Defence of India Rules, 1962, is repugnant to the said entry and is also inconsistent with the provisions of Essential Commodities Act, 1955, Section 2 (a) (xi), that the prejudicial act as defined in Rule 41 (1) (a) of the Constitution has no nexus with prejudicial act as stated in Rule 35 (6) of the Defence of India Rules, that the prejudicial act as referred to in Rule 41 (1) (a) of the Defence of India Rules suffers from vice of delegated legislation and that the Magistrate erred in holding that peace time provisions of law had been abrogated justifying the taking of drastic power under the Defence of India Act and the Defence of India Rules in view of the decision in Emperor v. Benowarilal Sarma reported in 47 Cal WN (FC) 41 : (AIR 1943 FC 36 ).

( 5 ) ARTICLE 352 of the Constitution empowers the President if he is satisfied that a grave emergency exist threatening the security of India or any part of its territory to make a Proclamation to that effect. Such a proclamation ceases to have effect at the expiration of two months from the date of its making unless it has in the meanwhile been approved by both Houses of Parliament. There was no challenge before us as to the issue of the Proclamation of emergency in 1962. Under Article 353 while a proclamation of emergency is in operation the power of Parliament to make laws with respect to any mater includes power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union list. It will be noted from the above that during the operation of Pr