MILAPCHAND KANUNGO Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE twenty five writ petitions, the particulars of which are given in the schedule annexed to this order, have been filed in this Court under Article 226 of the Constitution of Indis for writs of habeas corpus or for any other appropriate writ, order or direction for the release of the detenues, who have been detained under the provisions of Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'misa' ). Some of these petitions have been filed by the detenues themselves while some others have been filed by the near relatives of the respective detenues. The petitioners have challenged the detention and continuance of detention of the detenues on various grounds.

(2.) WHEN these petitions were set down for hearing before us, at the outset, learned Additional Advocate General, appearing for the State of Rajasthan and Mr. S. K. Mal Lodha, appearing for the Union of India, raised preliminary objections to the maintainability of these writ petitions and to the jurisdiction of this Court to hear and decide them. As the preliminary objections raised on behalf of the respondents in respect of all these writ petitions are identical and as common arguments have been advanced before us by the learned counsel for the parties, it would be convenient to deal with them by a common order.

(3.) ART. 359 of the Constitution runs as under - "359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the rights enforcement by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (1a) While an order made under clause (1) mentioning any of the rights conferred by part 3 is in operation, nothing in that part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. "