( 30 ) THE following passages from Willis (Constitutional Law, 1936 Ed.) explain the importance of judicial review in the context of personal liberty and equal protection of laws. After referring to Plymouth Coal Co. v. Pennsylvania (1914, 232 U. S. 531) (23) he says that "perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitray exercise by those on whom it is conferred" (p. 586) he also says : "for this reason there is need for judicial review to see whether or not power delegated has been exercised arbitrarily" (p. 587 ). This is because, as he explain in a different context, "liberty, contrary to the popular notion, is a creature of the law instead of something which is destroyed by law. In order to create liberty it is necessary to impose restraints upon the lawless acts of many individuals who would destroy more liberty than law could possibly destroy" (p. 568 ). This is the avowed justification of the present state of emergency. It is one this thing to say that the possibility of mistaken action cannot be ruled out but quite another to go so far as to say that even in a case of mistaken or misdirected action taken to detain it is outside the purview of the judicial process, to whatever limited extent it may be available. The obvious consequence of the latter would be to allow law to destroy liberty, whereas its true role is to uphold liberty. As Justice Jackson (dissenting) stated it so tersely but so well: "the choice is not between order and liberty. It is between liberty withrder and anarchy without cither" (Terminiollo v. Chicago, 1949, 3371 U. S. 1) (24 ).

( 31 ) THE ship of State could run into rough weather. When it does it may have to take note of several political factors which may not even be within the reach of the judicial power. Prof. Carl. J. Frienderick explain this idea in Constitutional Government and Democracy (Revised First Indian Edition 1966, pp. 595-596) :

"constitutional dictatorship, on the surface a contradiction in terms, is the final test of constitutionalism. For a Government which cannot meet emergencies is bound to fall sooner or later. There is not object in arguing against such emergency powers on the ground that they endanger the constitutional morale, and hence the maintenance of the constitutional order. Of course they do. Any suspension of legal norms, no matter how temporary, raises doubts concerning their validity. But after all, what docs an emergency mean if not that the constitutional order is threatened ? Imminent invasion and civil war are only the most blatant final stages of such a danger. No one in his right mind can argue that their emergence should not be forestalled. How are we to get effective, vigorous government action, and yet limit the power of governmental bodies so as to forestall the rise of despotic concentration of power ? Logically it is a paradox, but practically it has been done. The task requires all the wisdom man can muster. The prize in his greatest achievement : freedom. "the administrative-process (executive action) will during such an emergency have its sway but only subject to the limits set by the law. Even in that situation the administrator in whom such vast powers are vested during such dire situations, is not authorised to dispense with all the care (and circumspection) he can or is required to take ; that is why bona fide actions are protected even as those which are mala fide, which expression obviously includes those 'that are misdirected or open to serious doubt as not having been properly directed according to law, will not be protected.

( 32 ) THE Constitution of the United States provides (Art. I section 9, clause 2) that " (T) he privilege of the writ of Habeas Corpus shall not be suspended unless when in case of rebellion or invasion the public safety may require it". The "implication of this language is that the suspension of the privilege of

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