1975 Supreme(Cal) 385

High Court Of Calcutta
SANKAR PRASAD MITRA, S. K. DUTTA
UNION OF INDIA - Appellant
Versus
DHIRUBHAI GOKULDAS VORA - Respondent
Appeal Fmat3261  Of  1975
Decided On : 12/23/1975

The Presidential Order under Article 359 suspending the right to move any court for the enforcement of fundamental rights during the Emergency was valid and effective, and the inclusion of COFEPOSA in the Ninth Schedule of the Constitution barred any challenge to its validity on the ground of infringement of fundamental rights.

Headnote:

CONSTITUTIONAL LAW - EMERGENCY - SUSPENSION OF FUNDAMENTAL RIGHTS - PRESIDENTIAL ORDER UNDER ARTICLE 359 - EFFECT ON PENDING PROCEEDINGS - INJUNCTION RESTRAINING DETENTION UNDER COFEPOSA - VALIDITY - MAINTENANCE OF INTERNAL SECURITY ACT (MISA) - CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT (COFEPOSA) - NINTH SCHEDULE - EFFECT ON CHALLENGING DETENTION ORDERS.

Fact of the Case:

The petitioner, Dhirubhai Gokuldas Vora, was involved in smuggling activities and was subject to various legal proceedings, including an order of detention under MISA and a subsequent order under COFEPOSA. He filed a petition under Article 226 of the Constitution challenging the validity of COFEPOSA and seeking various reliefs, including an injunction restraining his detention. The High Court adjourned the hearing of the petition sine die in view of a Presidential Order under Article 359 suspending the right to move any court for the enforcement of fundamental rights during the Emergency.

Finding of the Court:

The Court held that the petitioner had no cause of action and was not entitled to any of the reliefs sought in the petition. It further held that the Presidential Order under Article 359 effectively suspended the right to move any court for the enforcement of fundamental rights, including the right to challenge the validity of COFEPOSA. The Court also noted that COFEPOSA had been included in the Ninth Schedule of the Constitution, which barred any challenge to its validity on the ground of infringement of fundamental rights.

Issues: 1. Whether the petitioner had a cause of action to challenge the validity of COFEPOSA and seek various reliefs under Article 226 of the Constitution. 2. Whether the Presidential Order under Article 359 suspending the right to move any court for the enforcement of fundamental rights during the Emergency was valid and effective. 3. Whether the inclusion of COFEPOSA in the Ninth Schedule of the Constitution barred any challenge to its validity on the ground of infringement of fundamental rights.

Ratio Decidendi: 1. The Court held that the petitioner had no cause of action because he had not yet been detained under COFEPOSA and there was no imminent threat of such detention. The Court further held that the petitioner's challenge to the validity of COFEPOSA was premature and could not be entertained at that stage. 2. The Court held that the Presidential Order under Article 359 was valid and effective in suspending the right to move any court for the enforcement of fundamental rights, including the right to challenge the validity of COFEPOSA. The Court noted that the order was made in accordance with the provisions of Article 359 and that it was not subject to judicial review. 3. The Court held that the inclusion of COFEPOSA in the Ninth Schedule of the Constitution barred any challenge to its validity on the ground of infringement of fundamental rights. The Court noted that Article 31B of the Constitution expressly provides that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution.

Final Decision: The Court allowed the appeal, stayed the order of the High Court adjourning the hearing of the petition sine die, and vacated the interim injunction restraining the petitioner's detention under COFEPOSA. The Court held that the petitioner had no cause of action, that the Presidential Order under Article 359 was valid and effective, and that the inclusion of COFEPOSA in the Ninth Schedule barred any challenge to its validity on the ground of infringement of fundamental rights.