THAMPAN THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) Arguments were heard as to the entertainability of this petition both of the petitioners in person and of the learned Additional Advocate General who has taken notice of this petition. The petitioner is a detenu under the Maintenance of Internal Security Act, 1971. He prays for a writ of certiorari quashing Ext. P1 detention order passed by the 2nd respondent; he also prove for a writ of mandamus or other writ, order or direction compelling the 1st respondent, the State of Kerala, to dispose of Ext. P-2 representations. There is also prayer that this Court should direct the 1st respondent to give the petitioner and other 'MISA prisoners' A Class facilities; the petitioner further prays for a writ of certiorai or order or direction quashing the Kerala Security Prisoners Order, 1975; another relief sought for by the petitioner is for a declaration that the Kerala Security Prisoners Order, 1975 is ultra vires the Constitution of India; he also seeks a declaration that 'the MISA Ordinance, 1975 is ultra vires to the Constitution of India'. These are the reliefs sought for by the petitioner besides the, general relief contained in relief (f) which is for the issuance of such other Writ order or directions which this Court may deem, fit and necessary.

(2.) Taking up the relief cought for as to declaration of the MISA Ordinance, 1975 as ultra vires the 'Constitution of India: the two Ordinances that were promulgated in 1975 amending the Maintenance of Internal Security Act, 1971 are the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) and the Maintenance of Internal Security (Second Amendment) Ordinance, 1975 (No. 7 of 1975), the former dated 5th July, 1975 and the latter dated 22nd July, 1975. I need not consider this relief in so far as the Maintenance of Internal Security Act as amended by the aforesaid Ordinances has been now included in the Ninth Schedule to the Constitution of India by the Thirtyninth Amendment to the Constitution which has obtained Presidential sanction on 10-8-1975. The petitioner is not, therefore, entitled to relief (e).

(3.) Coming to the relief is regards the declaration sought for that the Kerala Security Prisoners Order, 1975 is ultra vires the Constitution of India, again in so far as the Maintenance of Internal Security Act, 1971 as amended by the two Ordinances already referred to has been included in the Ninth Schedule to the Constitution as already stated. S.5 of that Act is immune from any attack, The Kerala Security Prisoners Order, 1975 has been passed by power conferred by S.5 of the Maintenance of Internal Security Act, 1971 on the 1st respondent State. Even otherwise a Division Bench of this Court in O. P. No. 2737 of 1972 (Ker) has upheld the Constitutional validity of S.5 of the Maintenance of Internal Security Act. This Court negatived the contention that S.5 of the Act is bad for excessive delegation of legislative power. And possibly the petitioner could not attack the Security Prisoners Order, 1975, (even apart from, the fact that the Act itself is now included in the Ninth Schedule to the Constitution) relying on Art.14 of the Constitution in so far as the petitioner's right to move this Court for the enforcement of the rights conferred by Art.14 has been taken away by the Presidential Order G. S. R.361(E) dated 27th June 1975. The petitioner is, therefore, not entitled to reliefs (c) and (d) set out in the petition.