MANEKBEN Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition for Habeas Corpus lias been filed by Smt. Manekben in respect of the detention of her husband, Sukur Naran Bakhia who has been detained by virtue of an order of the Central Government passed on December 19, 1974 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 52 of 1974, hereinafter referred to as the Act 52 of 1974. Before proceeding with the petition it will be advantageous to briefly set out the historical background leading to the impugned detention of Sukar Naran Bakhia. The Maintenance of Internal Security Act, No. 26 of 1971. hereinafter referred to as the MISA, came in to force on July 21, 1971. In December, 1971 hostilities broke out between India and Pakistan. Consequent thereto the President made a Proclamation of Emergency under Article 352 of the Constitution on December 3,1971. It is alleged that the detenu. Sukur Naran Bakhia suffered a heart attack on September 4, 1974 and was hospitalised. Hhe is stated to be still in hospital. On September 17, 1974 the President promulgated an ordinance amending the MISA. By this amendment smuggling and activities connected therewith were brought within the ambit of the -MISA as originally enacted. The detenu was arrested under an order of detntion dated September 17, 1974 on grounds purportedly falling under the amended MISA. On September 21, 1974 grounds of detention numbering 18 in the English language were served on the detenu. He was, however, not removed to the jail on the strength of a medical cartificate issued on September 22, 1974 but was detained in the hospital wing of the jail. On October 17, 1974 Special Criminal Application No. 810 of 1974 was filed in Bombay High Court for issue of a writ of Habeas Corpus in respect of the detenu. Rule nisi was issued by that High Court. On November 16, 1974 the President made an order under Article 359 of the Constitution suspending the enforcement of Fundamental Rights covered by Articles 14, 21, 22 etc. of the Constitution. The Ordinance amending the MISA stood repealed on the midnight of December 18, 1974. In the meanwhile Parliament had enacted Act 52 of 1974 on December 13. 1974 and it came into fores on December 19, 1974 immediately after midnight of December 18, 1974. On the morning of December 19, 1974 the detenu was served with and detained under the impugned detention order passed by the Central Government under the provisions of Section 3(1) of Act 52 of 1974. He was not produced before any Magistrate and indeed remained hospitalised. The grounds for detention in the English language numbering seven in respect of the impugned order of the Central Government dated December 19, 1974 were given to the detenu on December 23, 1974. On the same day the President ' made an order in exercise of the powers conferred by clause ( I ) of Article 359 of the Constitution in the following terms and published in the gazette :-

(2.) Inasmuch as the detention, of the detenu under orders of detention dated September 19, 1974 under MISA had come to an end on account of the aforesaid ordinance being repealed on December 18, 1974, Special Criminal Application No. 810 of 1974 filed in the Bombay High Court became infructuous and was withdrawn on January 6, 1975. The wife of the detenu thereupon moved this Court and obtained Rule nisi in the present petition on January 30, 1975.

(3.) The petition challenges the validity of the impugned detention not only as being illegal and without authority of law in itself but also on several other grounds. Briefly stated the first challenge is to the validity of Act 52 of 1975 as being beyond the legislative competence of Parliament and stated to have been enacted in colourable exercise of the power of legislation. The contention is that the enactment of the statute is a colourable attempts to bring it within the ambit of Entry 9, List I and/or Entry 3, List III of the Seventh Schedule of the Constitution. It is also urged that the said Act is violative of the Fundamental Rights guaranteed by Articles 14, 19, 21 and 22 especially as the MISA is still on the Statute Book and there is no guideline as to who may be detained under the MISA and who under Act 52 of 1974. It is further stated that the power of the Parliament to enact a statue like Act 52 of 1974 is not traceable to Entry 97, List I or Aritcle 248 of the Constitution. Preventive Detention Law, it is urged, as postulated by Article 22(3) of the Constitution has to be in consonance with and incorporate the provisions of sub-clauses (4) to (7) of Article 22 otherwise the statute cannot qulify to fall within the ambit of clause (3) of Article 22 of the Constitution. If that be correct, the impugned detention would be violative of clauses (1) and (2) of Article 22 of the Constitution and liable to be struck down. The contention is that Act 52 of 1974 being a void Act, the Presidential Order of December 23, 1974 cannot put life into a still born statute and it can be urged on behalf of the detenu that his detention is violative of clause (1) and (2) of Article 22.