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1974 Supreme(Ker) 182
Judges : P.GOVINDAN NAIR,V.BALAKRISHNA ERADI
Fathima Beebi - Appellant
Versus
M.K.Ravindranathan And Others - Respondent
Case No : O.P. No. 4357 of 1974
Decided On : 11/27/1974
Advocates Appeared :
For the Petitioner: M. C. Chagla, Kalathil Velayudhan Nair, V. S. Moothathu, N. R. K. Nair, K. J. Joseph and T. K. M. Unnithan, Advocates. For the Respondent: Advocate-General for Nos. 1 and 2, M/s. S. J. Sorabji, T. R. Andhyarujina, M. Ratna Singh and K. Prabhakaran, for Respondent No. 3.
During the period of the President's Order under Article 359 of the Constitution, the detenu can only enforce rights conferred by a statute that fall outside the scope of the guarantee under Article 22(5) and other rights not relatable to the fundamental rights referred to in the Presidential Order.
Headnote:
The case involved a challenge to the orders of detention passed under Section 3(1)(c) of the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974. The President issued an order under Article 359 of the Constitution, suspending the right to move any court with respect to orders of detention made under Section 3(1)(c) for the enforcement of the rights conferred by Article 14, Article 21, and clauses (4), (5), (6), and (7) of Article 22 of the Constitution. The court considered the scope and effect of the President's order and held that during the period of the order's operation, the detenu could only enforce rights conferred by a statute that fell outside the scope of the guarantee under Article 22(5) and other rights not relatable to the fundamental rights referred to in the Presidential Order.
GOVINDAN NAIR, C.J.
This is one in a series of petitions praying for the issue of a Writ of Habeas Corpus, arising from the orders of detention passed under Section 3(1)(c) of the Maintenance of Internal Security Act, 1971, for short, the Act, as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974 (No. 11 of 1974), issued by the President under Article 123 of the Constitution. It is by the amending Ordinance that Section 3(1)(c) was enacted which is in these terms :-
"3. Power to make orders detaining certain Persons :- (1) The Central Government or the State Government may -
(a) .............................
(b) .............................
(c) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from -
(i) smuggling goods, or
(ii) abetting other persons to smuggle goods or
(iii) dealing in smuggled goods
it is necessary so to do, make an order directing that such person be detained."
2. By order dated 20-9-1974, the Additional District Magistrate and Deputy Collector (Central), Cannanore, directed the detention of one Sri K. S. Abdulla on the ground that he was satisfied that it was necessary to do so to prevent Sri Abdulla "from abetting other persons to smuggle goods" (Ext. P1). Sri K. S. Abdulla was arrested at Manjeswaram by the Circle Inspector of Police, Kasara gode at 9.30 a.m. on 24-9-1974 after serving on him the original of Ext. P1. By Ext. P2 dated 28-9-1974 the grounds of detention were communicated to the detenu. In the meantime, on the 21st September, 1974 the Central Government had also passed an order under Section 3(1)(c) of the Act directing that the same person, Sri K. S. Abdulla be detained and kept in custody in Central Jail, Trivandrum. Ext. P3 is a copy of the said order. It is stated in Ext. P3 that the Central Government are satisfied that it is necessary to detain and keep Sri Abdulla in custody with a view "to preventing him from smuggling goods or abetting other persons to smuggle goods". Grounds of this order of detention were communicated to the detenu by Ext. P4 dated 28th September, 1974. The petitioner who is the wife of the detenu has challenged the two orders of detention Exts. P1 and P3 on various grounds. It is contended that the grounds stated in Exts. P2 and P4 are vague, they are irrelevant, there is no rational or proximate connection between the incidents mentioned and the conclusions expressed to have been arrived at by the detaining authorities, the grounds stated did not factually exist and are not supported by any materials and that the orders were passed without bona fides. The petitioner has also put forward a plea that the impugned orders of detention were made mala fide. The validity of Ordinance 11 of 1974 was also questioned. The provision in Section 16-A introduced by the Ordinance was attacked as discriminatory and violative of Article 14 of the Constitution.
3. This petition was elaborately argued on the above points on the 6th, 7th and 8th of this month but the arguments of counsel for the petitioner were not closed and at the request of counsel the case was adjourned to 18-11-1974. On that day the case could not be heard and the arguments were continued on the 19th, 20th and 21st. In the meantime on the 16th November, 1974 the President of India, acting under Article 359 of the Constitution, issued an order in these terms :-
NOTIFICATION
G.S.R. 659(E). In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that -
(a) the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under Section 3(1)(c) of the Maintenance of internal Security Act, 1971 as amended by Ordinance 11 of 1974, for the enforcement of the rights conferred by Article 14, Article 21 and cl
