M KARUNANIDHI Vs. M RAMAN

JUDGEMENT

(1.) THIS is petition under Art. 226 of the Constitution and S. 491, Crl. P. C. , for a writ in the nature of Habeus Corpus directing release of the petitioner from detention. He was apprehended at about midnight on 16-2-1965 at his residence at Madras by the first respondent, Assistant Commissioner of Police (Intelligence), madras, and has been taken to Palayamcottai and detained at the Borstal School there from the morning of the 18th. At 9 a. m. on that day, he was served with the order of detention made under R. 30 (1) (b) of the Defence of India Rules, 1962. He is a member of the Madras Legislative Assembly and Deputy Leader of the opposition. He is a member of the Dravida Munnetra Kazhagam and is said to be the treasurer and leading member of the working committee of the party. He alleges in his affidavit that he was a signatory to a resolution passed on 8-1-1965 by the working committee of his party to treat 26-1-1965 as a day of mourning, because Hindi as the official language would come into operation on that day and the use of the English language would become permissive or optional, and that the party's programme was to hold meetings, condemn the imposition of Hindi as official language, to wear badges and hoist black flags within one's home, but no processions were authorised by the party and no violence has ever been countenanced. According to him, the Chief Minister of Madras, the 4th respondent, threatened his party with dire consequences if they were to observe 26-1-1965 as a mourning day and the Chief Minister and his partymen made provocative speeches against the D. M. K. party members both on the floor of the Legislative Assembly and outside at public places. The petitioner was to have addressed a meeting at coimbatore on 26-1-1965. But, the previous night, on his way to Coimbatore, he was arrested at Karur, later taken to Tiruchirapalli sub-jail and released on or about 2-2-1965. He says he is the editor of a paper called "murasoli" and in that paper he published, since 14-2-1965, editorials and a series of cartoons attacking the 4th respondent on his political acts and policies. In this background, says the petitioner, his speeches, cartoons and editorials infuriated the fourth respondent and the order of his detention has been politically motivated and also motivated by the personal animosity and grudge against him of the 4th respondent and is mala fide and constitutes a fraudulent exercise of power. The petitioner further states that the use of Rule 30 (1) (b) of the Defence of India Rules, instead of the preventive Detention Act, constitutes proof of mala fides and that the order of detention could not be considered to be one under that rule, as there could not have been satisfaction to the Governor who passed it and the order itself did not disclose the individual person who was satisfied before making it. The petitioner, in short, urges that the detention order is mala fide and illegal.

(2.) THE 4th respondent has personally sworn to a counter-affidavit totally refuting and denying the petitioner's allegations and maintaining that the detention order was passed only on the basis of information duly received by Government through its official channels, regarding the activities of the petitioner, which, in the opinion of the Government, rendered his detention necessary to prevent him from acting in a manner prejudicial to public safety and maintenance of public order. He also has specifically denied that the detention order was mala fide, or was made out of political vindictiveness or personal ill-will or fury against the petitioner. He says that, in fact, there was nothing personal either in his speeches or exchanges between him as the head of the Government and the petitioner as the Opposition leader in the Legislative Assembly and that the detention order was made only after being satisfied on the basis of materials and reports officially received by the government. The petitioner, in his second affidavit by way of a reply to the first counter-affidavit of the 4th respondent, reiterated some of his earlier allegations and contentions and pointed out that the 4th respondent did not, in his counter-affidavit, specify the individual on whose satisfaction the order of detention was made and stated that for these reasons also the detention order was illegal. He also added that his detention was in relation to disturbances in regard to the language issue and had nothing to do with the purpose of the Defence of India Act and the rules made thereunder and to the security of India threatened by external aggression, the basis of the Proclamation of the President under Art. 352 of the constitution and that further at the time of his apprehension and until he was served with the order of detention three days later, he was not even informed of the grounds of his arrest. In his further affidavit, the 4th respondent categorically stated that he, as Minister in charge of the portfolio, after carefully studying the reports and considering the information and the recommendation of the Special branch, C. I. D. , Madras, was satisfied that the detention of the petitioner was necessary to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order, and then passed the order of detention. After once again traversing some of the petitioner's allegations, the 4th respondent concluded by stating that the order of detention was passed only on the strength of materials and information before Government and after he, as Chief Minister, and Minister in charge of the portfolio, and Public Department, was satisfied of the necessity to detain the petitioner.

(3.) BEFORE we consider the submission made to us on behalf of the petitioner, it is necessary to direct out attention first to the ambit and nature of enquiry permissible or open in this petition in the context of Art. 359 (1) of the Constitution and the Order of the President made thereunder. Consequent on the aggression on 8-9-1962, by the Chinese on the northern border of India, the President made a proclamation on 26-10-1962, under Art. 352 of the Constitution. The proclamation declared the existence of a grave emergency whereby the security of India was threatened by external aggression. The Defence of India Ordinance, 1962, was also promulgated which was later replaced by Defence of India Act, 1962. On 311-1962, the President, in exercise of his powers under Art. 359 (1) made an order suspending for the period the proclamation of emergency is in force, the right of any person to move any Court for the enforcement of the rights conferred by Arts. 21 and 22 of the Constitution. By a later order, Art. 14 also was added. At an earlier stage, of the arguments before us, it was suggested for the respondents that in view of the President's order, the petitioner cannot have from this Court the relief he has prayed for and that his petition should be dismissed in limine. Learned counsel for the petitioner urged, however, that the ban imposed by the presidential Order is but confined to enforcement of fundamental rights under those articles and that his petition being both under Art. 226 of the Constitution and S. 491 (1) (b), Crl. P. C. , he is entitled to urge other grounds in support of the petition. The precise question thus raised as to the scope and effect of the presidential Order in relation to Art. 359 (1) and the extent to which the bar affects an applications under S. 491 (1), Crl. P. C. , has been decided recently by a Special constitutional bench of the Supreme Court in Makhan Singh v. State of Punjab, and we are, therefore, relieved of the necessity of ourserves deciding it. There it has been held:--