KRISHNA MADHAORAO GHATATE Vs. UNION OF INDIA

JUDGEMENT

(1.) These Special Civil Applications under Article 226 of the Constitution of India and Criminal Applications under Section 482 of the Criminal P. C., 1973 read with Arts. 226 and 227 of the Constitution of India are filed for a writ of habeas corpus, or any other appropriate writ, order or direction for release of the detenus, who have been detained under the provisions of the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment), Act, 1975, referred to hereinafter as the MISA. These petitions have been filed by the near relations of the respective detenus. Various contentions have ben raised in these petitions challenging the detention and the continued detention of the detenus, which according to the petitioners is illegal. The detenus were detained under the orders of the Commissioner of Police, Nagpur, or the District Magistrate of the District concerned vide detention order served on them on different deters in June and July, 1975. Apart from the orders passed by these officers under Section 3(1) of the MISA, in all these cases a declaration was also issued by the competent authority under Section 16-A of the MISA, as the competent authority was satisfied that it is necessary to detain the detenus for effectively dealing with the emergency proclaimed by the President of India. These declarations were duly communicated to the detenus.

(2.) The respondents in these petitions, namely, the Union of India and the Commissioner of Police, have raised a preliminary objection contending that all these applications are not maintainable, nor they could be heard by this Court in view of the presidential Order promulgated on 27th June, 1975 issued in exercise of the power conferred upon the president under clause (1) of Article 359 of the Constitution of India. As the questions involved in all these petitions are identical and the common arguments were advanced before us by the learned counsel for the petitioners as well as the respondents, all these petitions are being disposed of by this common judgment.

(3.) It is contended by Mr. Chagla, the learned counsel for the respondents, Commissioner of Police and the State of Maharashtra, that in view of the Presidential Order dated 27th June, 1975 issued under Art. 359 (1) these petitions cannot proceed, because, in substance, the petitioners are seeking to enforce their fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. According to him, in view of the presidential Order suspending the right to move any Court for enforcement of the rights k guaranteed under Articles 14, 21 and 22 and in view of the suspection of the provisions of Article 19 under Article 358, the petitioners cannot now challenge their detention on any ground whatsoever. Further in view of the amendments to MISA and particularly the amendments to Sections 16 and 18, even the procedural right conferred upon the petitioners by the MISA are also taken away, and therefore, according to whom, none of the grounds on which the detention of the detenus is challenged in these petitions is now available to the petitioners. He further contended that in the past a challenge was permissible in limited compass because the earlier Presidential Orders were conditional in nature. According to him, the present Presidential Order dated 27th June, 1975 is omnibus and a blanket one. It is all comprehensive and unconditional, and therefore, the pleas on which the detention could have been challenged in view of the earlier Presidential orders, are not now available to the petitioners and the said challenge is not now open in view of the present blanket and all comprehensive order issued by the president on 27th June, 1975. He further contended that a right of a citizen to liberty is guaranteed under Article 21 of the Constitution. As that right itself is taken away by virtue of the order issued under Article 359 (1), there is no further right to liberty de hors Article 21 of the Constitution, and therefore, these petitions are not maintainable. According to him, the law laid down by the Supreme Court in various earlier cases is of little assistance. In this context he has made a reference to the decisions of the Supreme Court in Makhan Singh v. The State of Punjab, (AIR 1964 SC 381); The State of Maharashtra v. Prabhakar Pandurang Sanzgiri, (AIR 1966 SC 424); K. Ananda Nambiar v. Chief Secretary to the Govt. of Madras, (AIR 1966 SC 657) and Ram manohar Lohia v. The State of Bihar, (AIR 1966 SC 740). According to the learned counsel, in all these cases the Supreme Court was concerned with the conditional order. He further contended that the law laid down therein clearly indicates that if the Presidential Order would not have been a conditional one, then in these cases also the Supreme Court would have held that the petitions were not maintainable. In support of his dontention he has drawn our attention to the various observations made by the Supreme Court in these cases. Therefore, in substance, it was contended by him that all the earlier decisions of the Supreme Court, which have carved out an area for judicial enquiry in the matters of preventive detention, are of no assistance in deciding the present controversy. According to him, in all these cases the Supreme Court dealt with conditional order and not with a blanket or comprehensive Presidential Order. On the contrary, from the observations made in these decisions which were based on a conditional order, it is clear that if the order would not have been a conditional one but was a blanket one, then from the very observations made by the Supreme Court an inference could safely be drawn that no challenge to the detention order on any ground was open. He further contended that it is not material as to how the matter was brought before the Court, but that is material is to find out as to what the petitioners substance intended to do. If in substance ultimately the petitioners the seeking enforcement of their fundamental right under Article 21, then in view of the Presidential Order they cannot be permitted to do so. He also contended before us that Makhan Singh's case has been duly explained by the Supreme Court in a subsequent decision, namely, Ram Manohar Lohia's case, and therefore, the observations made by the Supreme Court in Mahan Singh's case is no more good law. Shri Chagla has further contended that in view of the order issued by the President under Article 359 (1) of the Constitution even the executive action resulting in the detention of a person is not open for challenge. According to him, it is not open for a citizen to demand enforcement of an injunction or otherwise incorporated in Article 21. Any breach of this injunction cannot be enforced in a Court of law in view of the suspension of Article 21 itself. He further contended that even the challenge that the detention of a person is not in accordance with the MISA is not now open to view of the blanket - Presidential Order. According to him, such a blanket order has been issued by the President for granting an omnibus protection to the executive actions during the period of emergency. He further contended that in view of the amendment to Article 359; namely the provisions of Article 359 (1) (A)m now the Articles mentioned in the Presidential Order are wholly suspended for all purposes. If in spite of such a blanket and general presidential Order it is held that the petitioners can approach this Court for a writ of habeas corups, then the very purpose of the Presidential Order will be frustrated and the Article 359 (1) itself will be rendered nugatory. Therefore, according to Shri Chagla, even if the executive action is not supported by law, still it cannot be challenged, as a right to enforce right to liberty itself has been taken away.