SATYA SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this and similar writ petitions which seek to challenge orders of detention passed under section 3 as well as section 16A(3) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'MISA'), a preliminary question has been raised that they are not maintainable. A similar contention was repelled by us for reasons which have been elaborately stated in Smt. Bharati Nayyar v. Union of India & Others, (Crl. Writ No. 121 of 1975) (1) decided on 15-9-1975 (we shall hereafter refer to the same as our previous decision). We have, in essence, held as follows :-

(2.) That the order of detention under the MISA could not be challenged under Article 226 only if the same is passed for it. The rule of law will not permit arbitrary executive action; judicial review, subject of course to certain limits and depending on the facts of each case, would be clearly available where it is shown on behalf of the detenu that the impugned order of detention under section 3 and/or declaration under section 16A(3) of the MISA are not passed under the Act. Shortly stated this is only the principle of the legality of any executive action taken being possible to test under Article 226 of the Constitution.

(3.) Shri Subramaniam, learned counsel for the respondents, contended that our previous decision is no longer applicable in view of the later amendment to the MISA by Ordinance XVI of 1975 which added sub-section 9 to Section 16A. If the said amendment is of that description that it has since brought about a change in the law in respect of the identical contention which is now advanced before us then, surely, our previous decision would be of no assistance to the petitioner. This is not disputed by Shri V. M. Tarkunde, learned counsel for the petitioner.