MOHAMMAD YAQUB Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) These twenty-one petitions under Article 32 of the Constitution for a writ of habeas corpus raise common questions of law and will be dealt with together. It is enough to set out the facts in one of the petitions (No. 142 of l967) , for the facts in other petitions are almost similar. The petitioner was arrested on November 11, 1966 and detained under an order passed under R. 30 (1) (b) of the Defence of India Rules, 1962 (hereinafter referred to as the Rules) . It appears that though the order was reviewed after the period of six months, no opportunity was given to the petitioner to represent his case before the reviewing authority. In consequence the detention of the petitioner became illegal after the first period of six months in view of the judgment of this Court in P. L. Lakhanpal vs. Union of India AIR 1967 SC 1507. The State Government realising this defect, cancelled the order dated November 11, 1966 on August 3, 1967, and on the same day a fresh order of detention was passed and it is this order which is being challenged before us. It is not in dispute that in view of the judgment of this Court in Jagdev Singh vs. State of Jammu and Kashmir, W. P. No. 69 of 1967, D/- 14-8-1967, it was open to the State Government, in view of the formal defect in making the review, to pass a fresh order of detention after revoking the earlier order, which in any case became ineffective after the first six months, if the circumstances which led to the detention originally still continued.

(2.) The main attack of the petitioners is on the order of the President passed on November 3, 1962, as amended on November 11, 1962, under Article 359 (1) of the Constitution. By this order the President declared that the right to move any court for the enforcement of the fundamental rights conferred by Articles 14, 21 and 22 of the Constitution would remain suspended for the period during which the Proclamation of Emergency issued under Article 352 (1) , was in force, if any person was deprived of such right under the Defence of India Ordinance (No. 4 of 1962) or any rule or order made thereunder. The argument in support is put this way. The President is an "authority" within the meaning of Article 12 and therefore is comprised within the definition of the word "State" and the order passed under Article 359 is a law within the meaning of Article 13 (2) of the Constitution. Consequently an order passed by the President under Article 359 is liable to be tested on the anvil of the fundamental rights enshrined in Part III of the Constitution. Secondly, it is urged that an order passed under Article 359 is made in the context of the Emergency and therefore enforcement of only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. In consequence, the President can only suspend the enforcement of fundamental rights under Article 22 and Article 31 (2) under an order passed under Article 359 and no others. Thirdly, it is urged that even if the President can suspend the enforcement of any fundamental right, the order passed can still be tested under the very fundamental right enforcement of which has been suspended. Fourthly, it is urged that an order passed under Article 359 can in any case be challenged under Article 14, and if so, the order passed in the present case is violative of Article 14 because some persons can be detained under the Defence of India Act, 51 of 1962 (hereinafter referred to as the Act) and the Rules while others can be detained under the Preventive Detention Act. As the Act and the Rules give more drastic powers for detention as compared to the powers conferred by the Preventive Detention Act, there is discrimination, for there is no indication as to when detention should be made under the Act and the Rules and when under the prevention law, and the matter is left to the arbitrary discretion of the executive. Fifthly, it is urged that in view of the language of the order under Article 359, there should have been an express provision in the Act and the Rules to the effect that enforcement of fundamental rights under Articles 14, 21 and 22 was suspended and in the absence of such an express provision, the Presidential order under Article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution. Sixthly, it is urged that Article 22 (5) provides that grounds of detention should be furnished to a detenu and the order of the President did not do away with the necessity of furnishing the grounds.

(3.) Besides these main contentions, three subsidiary contentions have also been raised in one petition or another and they are - (i) that the fresh order had not been communicated to the detenus and was therefore of no avail; (ii) that the order was not in the form as required by Article 166 of the Constitution and it is therefore for the State Government to prove that it was passed by the authority which had the power to do so; and (iii) that the fresh order was male fide.