MAKHAN SINGH TARSIKKA SHAMSHER SINGH JOSH GURBUX SINGH ATTA DHANPAT RAI NAHAR DALIP SINGH MUTA SINGH DARSHAN SINGH JHABAL CHANAN SINGH DHUT KARNAIL SINGH FIDA SHRIMATI GODAVARI SHAMRAO PARULEKAR SHAMRAO VISHNU PARULEKAR PRALAD KRISHNA KURANE SHRIPAD YESH Vs. STATE OF PUNJAB:STATE OF PUNJAB:STATE OF MAHARASHTRAS:STATE OF MAHARASHTRAS:TH

JUDGEMENT

(1.) This group of 26 criminal appeals has been placed for hearing and disposal before a special Constitutional Bench, because the appeals constituting the group raise two common important questions of Constitutional law. Nine of these appeals have been preferred against the decisions of the Punjab High Court, whereas seventeen have been preferred against the decisions the Bombay High Court. All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(1) (b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by S. 3 of the Defence of India Ordinance, 1962 (No. 4 of 1962) (hereinafter called the Ordinance). They applied to the Punjab and the Bombay High Courts respectively under S. 491 (1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that S. 3(2) (15) (i) and S. 40 of the Defence of India Act, 1962 (No. 51 of 1962) hereinafter called 'the Act' and Rule 30(1) (b) under which they have been detained are constitutionally invalid, because they contravene their fundamental rights under Articles 14, 21 and 22(4), (5) and (7) of the Constitution, and so, they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty. These petitions have been dismissed on the ground that the Presidential Order which has been issued under Art. 359 of the Constitution creates a bar which precludes them from moving the High Court under S. 491 (1) (b), Cr. P. C. That is how the decisions of the two High Courts under appeal raise two common questions of considerable importance. The first question is:what is the true scope and effect of the Presidential Order which has been issued under Art. 359(1) The answer to this question would depend upon a fair and reasonable construction of Art. 359 (1) itself. The second question is:does the bar created by the Presidential Order issued under Art. 359 (1) operate in respect of applications made by detenues under S. 491 (1) (b) of the Code The answer to this question would depend upon the determination of the true character of the proceedings which the detenues have taken under S. 491 (1) (b), considered in the light of the effect of the Presidential Order issued under Art. 359(1). Both the Punjab and the Bombay High Courts have held against the appellants. Meanwhile, when similar petitions were made before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963 Sher Singh Negi v. District Magistrate, Kanpur (All) the said High Court took a contrary view and directed the release of the detenues who had moved it under S. 491 (1) (b) of the Code. It is because the questions raised are important and the answers given by the different High Courts have disclosed a sharp difference of opinion that a Special Bench has been constituted a deal with these appeals. If the two principal questions are answered in favour of the detenues, a third question would arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules.

(2.) On September 8, 1962, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India. That is why on October 26, 1962, the President issued a Proclamation under Art. 352 of the Constitution. This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. On the same day, the Ordinance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3, 1962. On this day, the President issued the Order under Art. 359 (1), suspending the rights of citizens to move any Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26, 1962, would be in force. On November 6, 1962, the Rules framed by the Central Government were published. Then followed an amendment of the Presidential Order on November 11, 1962. By this amendments, for the words and figures "Article 21" the words and figures "Articles 14 to 21" were substituted. On December 6, 1962, Rule 30 as originally framed was amended and Rule 30A added. Last came the Act on December 12, 1962. Section 48(1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of 1962. Section 48(2) provides that notwithstanding such repeal, any rules made, anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made, done or taken under this Act as if this Act had commenced on October 26, 1962. That is how the Rules made under the Ordinance continued to be the Rules under the Act, and it is under Rule 30 (1) (b) that the appellants have been detained.

(3.) Before dealing with the points which have been raised for our decision in the present appeals it is necessary to indicate briefly at the outset the general argument which has been urged before us by Mr. Setalvad on behalf of the appellants, and the learned Attorney-General on the other side. Article 359 (1) which falls to be construed, occurs in Part XVIII of the Constitution which makes emergency provisions. Whenever the security of India or any part of the territory of India is threatened whether by war or by external aggression or internal disturbance, the President may, under Art. 352, by proclamation, make a declaration to that effect Articles 353 to 360 which occur in this part thus constitute emergency provisions. The learned Attorney-General contends that in construing an emergency provision like Art. 359(1), we must bear in mind the fact that the said Article is intended to deal with a situation which has posed a threat to the security of India, and so, fundamental rights guaranteed by Part III which are undoubtedly of vital importance to the democratic way of life guaranteed by the Constitution have to be regulated during an emergency because the very security of the nation is exposed to serious jeopardy. The security of the nation on such a solemn occasion must have precedence over the liberty of the individual citizens, and so it is urged that if Art. 359 is capable of two constructions, one in favour of the fundamental rights of the citizens, and the other in favour of the grant of power to the President to control those rights, the Court should lean in favour of the grant rather than in favour of the individual citizen's fundamental rights.