Order in excess of powers or colourable exercise of powers.

ANANTANARAYANAN, J. :- On 26th October 1962, the President of India proclaimed the existence of a state of emergency under Art. 352(1) of the Constitution. On the same date, the Defence of India Ordinance IV of 1962 was promulgated. On 22nd and 23rd November 1962 orders were passed under rule 30(b) and rule

30(4) of the Defence of India Rules, 1962, directing the detention of the two writ petitioners, Sri K.T.K. Thangamani (W.P. 333 of 1963) and Sri Ananda Nambiar (W.P.334 of 1963), because the Government were satisfied under S. 3(2)(15)(i) of the Defence of India Act. 51 of 1962, that these persons were likely to act "in a manner prejudicial to the Defence of India and Civil Defence", and that their apprehension and detention were hence necessary in the interests of the State, These persons were allocated as detenus to the Salem Central Jail, and it is from such detention that they have preferred these petitions to this court.

2. Both the petitioners raise almost identical grounds, praying for the cancellation of certain restrictions imposed on them in several respects, for the production by the Government of the rules framed for such detention, and allied reliefs; in addition, Sri K.T.K. Thangamani prays that he should be permitted to attend that meetings of the Madras Dock Labour Board on such terms as to parole as may be imposed by this court; and Sri K. Ananda Nambiar prays that he may be permitted, as a Member of Parliament; to attend the session of the Lok Sabha. We might add that, in their respective affidavits, both the petitioners have claimed that they were not seeking for any orders of release per se, in view of the limitations that the Defence of India Act has put on the courts. Both the affidavits refer to S. 44 of the Act, which is dealt with by us in detail later. The counter-affidavit of the State, common to both the writ petitions, deserves reference for its somewhat elaborate treatment of the issues raised by these petitioners. According to the contentions of the Government, though instructions have been issued with regard .to the rules for the maintenance of detenus, (G.O. No. 214 Public (General B) Dept., dated 11-2-1963), those: instruction were intended for official use alone, and their publication might be prejudicial. But Government are always willing to deal with any particular request of any detenu, in accordance with these uniform and common rules. S. 44 is directory and advisory in nature, and the provisions thereof have no application to individual orders. The restrictions are essential for the very purpose of the emergency, and the relaxation of them might defeat those public interests which have necessitated the detention of the petitioners. This consideration will particularly apply, for instance, to any terms of parole permitting Sri K.T.K. Thangamani to attend the meeting of the Madras Dock Labour Board, or Sri Ananda Nambiar to attend the session of the Lok Sabha. Finally, since some reference was made in the affidavits to the detention of the petitioners at Salem Central Jail, Government have submitted that the allocation of all arrested detenus, as many as 107 in Madras State, to several Central jails was made purely on the basis of security and available facilities; there was nothing punitive intended by such a measure.

3. As the writ petitions were argued before us, both by the learned Advocate General for the State, the petitioners themselves in person, and Sri Mohan Kumaramangalam who agreed to appear as amicus curiae, in order to stress certain features of the contentions raised on behalf of the petitioners, it became evident that matters of far greater constitutional import than the relatively limited questions of the relaxation of specific terms or rules, appearing in the affidavits, were really involved in these cases. For this reason, we shall deal only incidentally with particular terms or restrictions and, in this judgment, we shall be primarily concerned with the wider is