Judges: A.N. Ray, H.R. Khanna, M. Hameedullah Beg, P.N Bhagwati, Y.V. Chandrachud.

Facts:

The State is the appellant. The respondents were petitioners in the High Courts. These appeals are by certificate as well as by leave. The respondents filed applications in different High Courts for the issue of writ of habeas corpus. They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of emergency by the President under Article 352 of the Constitution. They challenged the legality and validity of the orders of their detention in all the cases.

The judgments are of the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.

The High Courts held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statute which form the conditions precedent to the exercise of power under that statute as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary.

The High Courts held that the High Courts could not go into the questions whether the Proclamation of emergency was justified or whether the continuance thereof was malafide. The High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts.

Issue:

Whether a writ petition can be filed or not under Article 226 of the Indian Constitution in the High Court during the period of emergency in order to enforce the Fundamental Rights?

Law:

Constitution of India- Article 19(1) - guarantees six fundamental freedoms to every citizen of India, namely- Freedom of speech and expression; to assemble peacefully and without arms; to form associations, unions or co-operative societies; to move freely throughout the territory of India; to reside and settle in any part of the territory of India, and to practice any profession, or to carry on any occupation, trade or business. However, these freedoms are not absolute or uncontrolled but are subject to certain reasonable restrictions.

Constitution of India-Article 21-"No person shall be deprived of his life or personal liberty except according to a procedure established by law".

Constitution of India - Article 226(1) - Each High Court within India's territorial jurisdiction has the ability and power to issue orders, instructions, and writs, to any individual or authority, including the government, for the enforcement of Part III of the Indian Constitution or basic fundamental rights and other legal rights within its own jurisdiction.

Constitution of India- Article 359- Suspension of the enforcement of the rights conferred by Part III during emergencies.

MISA, 1971- Section 3(1) - Power to make orders detaining certain persons.-

MISA, 1971- Section 8(1) - When a person is detained in pursuance of a detention order, the authority making the order shall, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

MISA,1971- Section 16(A) - When making an order of detention under this Act against any person (including a foreigner), the Central Government, the State Government or, the officer making the order of detention if considers that the detention of such person under this Act is necessary for dealing effectively with the emergency, the Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned.

MISA,1971- Section 16A(9) - Notwithstanding anything contained in any other law or any rule having the force of law,- the grounds on which an order of detention is made under Section 3 shall be treated as confidential and shall be deemed to refer to matters of State. no person shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a).

Contentions:

Petitioners

The emergency provisions of the Indian Constitution were primarily intended to grant the State extra authority in the area of executive power. State is regarded as the supreme authority during the period of emergency since they have complete control over how such laws are implemented in the nation.

No detention order was issued despite assertions made by the advisory board that there was no legal basis for his detention and that keeping him in custody would be a serious violation of Article 22. As a result of the President's order in accordance with Article 359, the ability to pursue rights under Article 19 was suspended (1).

The right of the public to approach courts was suspended in order to uphold fundamental rights (such as the right to life and the right to personal liberty). It was done within the bounds of the law and that the current circumstance would not indicate a lack of the rule of law.

Article 358, 359(1), and 359(1A) of Part XVIII of the Indian Constitution are the fundamental requirements of a nation and that the military and economic security of the country comes first.

Since the Presidential Order under Article 359(1) was first suspended by the aforementioned Article, it cannot be challenged on the grounds that it violates Fundamental Rights.

Respondent

During the emergency situation, the legislature received absolute authority under Article 359(1) and that no limitations were in place to protect laws that violated basic rights.

The sole purpose of enacting Article 359(1) was to prevent individuals from petitioning the Supreme Court under Article 32 of the Indian Constitution in order to protect their Fundamental Rights; however, it had no bearing on common law or statutory rights to personal liberty, and individuals were still permitted to bring their case before the High Court in accordance with Article 226.

Natural Law, Common Law, and Statutory Law were not affected by the Presidential Orders that were implemented, saying that only Fundamental Rights were affected.

The Executive's power had not been slightly expanded and that they were either supporting or opposing the people. The Executives' authority was granted in accordance with Article 162 of the Indian Constitution.

The detention legislation adhered to the Constitution's requirements and that Article 21 does not just protect a person's right to life and personal liberty.

Articles 256, 265 and 361(3) of the Constitution grant non-fundamental rights, and it was maintained that the Presidential Orders had no bearing on those rights. The arrests and detentions were carried out in accordance with the parameters outlined in Section 3 of the MISA Statute, and that if an arrest was made without meeting all of the guidelines, it was deemed to be "outside the powers" of that act.

Analysis:

(i) The court gave attention on the executive's compliance with legislation approved by the legislature, and mentioned that the Presidential Order issued in accordance with Article 359(1) of the Indian Constitution does not contravene any parliamentary laws, therefore an explanation of the detention is not necessary.

(ii) The only thing that constitutes a person's right to personal liberty is their own individual freedom. That right was given the status of a fundamental right, along with a few other rights, so that it could not be modified and that a simple majority could not violate it. According to Article 359(1), the President has the authority to suspend the application of any rights, even those that have been made holy by being extricated from the general tangle of human rights. It is difficult to accept that the right to enforce non-basic rights pertaining to the same subject matter should continue to exist if the enforcement of fundamental rights can be postponed in times of emergency.

(iii)In response to the declarations of emergency, the President has issued directives in accordance with Article 359 (1). The detainee's varied Locus Standi to assert any of his fundamental rights outlined in the Presidential Order is removed, and as a result, there is no substantive matter into which the High Courts may lawfully enquire when exercising their writ jurisdiction. From this perspective, the injunction in Section 16A(9) is harmless since it pretends to establish a check on a power that in reality has only a formal existence. The constitutional authority granted by Article 359(1) is assisted by Section 16A(9), which also furthers the objectives of the Presidential Order issued in accordance with that Article.

(iv)One of the components of the Rule of Law idea is the certainty of the law, however it only constitutes one component and offers limited direction when considered separately. The fundamental characteristic of the Rule of Law is that the State's judicial power is mostly distinct from the Executive and the Legislature. The word "rule of law" is both normative and descriptive. It conveys an ideal as well as a legal fact. A free society does not necessarily follow the Rule of Law. If the "Existence of the Democratic System" falls under the purview of the Rule of Law, it means two things. First and foremost, a democratic system's individual liberties include the freedom for each society's citizens to select the form of government they wish to live under. Freedom of speech, freedom of assembly, and freedom of association are in second position. These are not inalienable rights, and the need to balance competing assertions of those rights justifies their exclusions. The concern of the law to ensure that the position and dignity of all individuals are upheld to the greatest extent feasible serves as the criterion by which this reconciliation can be achieved.

A.N. Ray, J (concurring)

(i) Law, whether common law or other law, limits and regulates freedom, which, in Burke's view, is regulated freedom rather than abstract or unrestricted freedom. If extraordinary powers are granted, they are granted because the urgency is extraordinary and we are only limited to the period of emergency, in accordance with the common sense of the people and the system of representative and responsible government that has evolved.

H.R. Khanna, J (dissenting)

(i) The findings in the aforementioned judgments demonstrate that, if the right in question was not protected by the presidential orders of 1962 and 1974, the warrant of arrest could nevertheless be declared invalid under section 359. The protection offered by the absolute presidents was constrained and confined to giving up the right to contest arrest warrants and other actions taken in accordance with these presidential orders' provisions when certain clauses were violated.

(ii) The presidential orders did not safeguard the arrest warrant if the detention of a detainee did not adhere to the rules outlined in them, and it was acceptable to query the legality of the imprisonment at the prison. The justification was made contrary to those provisions, not in accordance with them.

M. Hameedullah Beg, J (concurring)

(i) The right to individual liberty and the freedom to assemble in public were among the Constitution's guiding principles, it can be argued that the rule of law dominates it, whereas in many foreign constitutions, the security (as it is) placed on the rights of individuals arises or seems to result from the general principles of the constitution, the rights of private persons in exceptional circumstances brought before the courts.

P.N. Bhagwati, J.(concurring)

(i) A democracy faces three distinct dangers to its existence: a nation, a democracy, and three different forms of crises. The first is war, particularly one fought to fend off an invasion, in which a state "must turn its political and social system in peacetime into a combat machine in wartime and surpass the skills and efficiency of war the opponent.

(ii) A crisis scenario of the highest degree may be caused by a real war, a threat of war, or preparations being made in case one is about to break out. In such a situation, especially when people are faced with the horrifying horror of national slavery, it is impossible to discuss the necessity to consolidate more authority within the government and the reduction of typical political and social liberties.

(iii) The second crisis constitutes prospect or occurrence of internal subversion aiming to disturb national life and jeopardise a constitutional government. There are several possible causes for this behaviour. The most typical is probably disloyalty to the current system of government, which is frequently coupled with a desire for violent change.

(iv) The third crisis, which the constitutional government now recognises as requiring an emergency sanction, is either creating or resulting in the collapse of the economy. An economic downturn poses such a serious threat to a nation at war or under internal subversion that it must be acknowledged. These three emergency situations are ones that ordinarily pose a threat to constitutional democracy.

Y.V. Chandrachud, J. (concurring)

(i) The right to life and personal liberty is not simply protected by clause 21. Though the liberty of the individual is a highly prized freedom and though the writ of habeas corpus is a powerful weapon by which a common man can secure his liberty, there are times in the history of a Nation when the liberty of the individual is required to be subordinated to the larger interests of the State. In times of grave disorders, brought about by external aggression or internal disturbance, the stability of political institutions becomes a sine qua non of the guarantee of all other rights and interests. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible.

Conclusion:

(i) The Hon'ble Supreme Court accepted the appeals and the judgements were set aside.

In light of the Presidential order, the majority of the court ruled that "no person has any locus-standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ, order, or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act, is illegal, is vitiated by mala-fides factual or legal.

(ii) Section 16A(9) of the MISA is constitutionally valid.

Important Precedents

(i) M. P. Sharma & Ors. v. Satish Chandra.

(ii) Kharak Singh v. State of U.P. & Ors.

(iii) Bennett Coleman & Co. and Ors. v. Union of India.