PRABHAKAR KESHEO TARE AND OTHERS Vs. EMPEROR

JUDGEMENT

(1.) THIS order will govern Misc. Criminal cases Nos. 57, 69 and 70 of 1942. We have before us a number of applications under Section 491, Criminal P.C., the section popularly known as the habeas corpus section, and the first point we have to consider is whether the right to apply subsists. The learned Advocate-General contends that it does not, and though he admits that the section has not been expressly repealed or abrogated he contends that the effect of the Defence of India Act (Act 85 of 1939) read with the rules is to render it nugatory. Now it is beyond dispute that this Court has no power to issue the writ of habeas corpus, see Pratulchandra Mitra v. Commandant Hijli Detention Camp following Girinda Nath v. Birendra Nath and no one contends that the powers conferred by Section 491 are as wide as those under the Habeas Corpus Act. But one matter is common, namely, the right of any person detained within the limits of this Court's appellate jurisdiction, whether by Government or by any one else, to apply to this Court and demand, either that he be "dealt with according to law" or that he be "set at liberty." Fundamentally, the principles which underlie both provisions are the same. The object of both is to safeguard the liberty of the subject against excesses of the Executive and against an abuse of power. This is the most fundamental right known to the constitution bar only-one, namely the right of the Government of the day to preserve the safety of the realm. The right is prized in India no less highly than in England, or indeed any other part of the Empire, perhaps even more highly here than elsewhere; and it is as jealously guarded by the Courts. In the words of Lord Atkin delivering the judgment of the Privy Council in Eshugbayi (Eleko) v. Officer Administering the Government of Nigeria A.I.R. 1931 P.C. 248: In accordance with British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the Executive.

(2.) NOW , as I have said, this is one of the most fundamental rights known to the Constitution and the most highly prized, but it does yield place to another matter even more fundamental-the safety of the realm. No one doubts the right of the Legislature, or of such power as takes its place in emergencies, or when it is not functioning, to modify the rights of the subject or even to suspend or take them away altogether, and this in times of peace no less than war; for under the Constitution the Legislature is supreme. But, be it observed, it is the Legislature which is supreme, not the Executive, and so, before the Executive can claim the power to override those rights, it must show that the Legislature has empowered it to do so, and under the constitution the Legislature can only act in particular ways. All empowering must therefore be done properly and formally, deliberately, in the manner laid down by the Constitution. The Executive cannot suddenly step in and claim the right to wield absolute and arbitrary power-not even in war time. For, as Lord Atkin said in his dissenting judgment in Liversidge v. Anderson1942 A.C. 206 (Lords Macmillan and Wright agreeing as to this in principle - there was no difference of opinion on this point): In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the Executive; alert to see that any coercive action is justified in law.

(3.) THE learned Advocate-General admitted that the section has not been expressly repealed, but he contended that the effect of the Defence of India Act and the rules made under it was to render it nugatory, and he contended that in consequence the applicants had no right of audience. I refuse to accept this contention. I refused to accept a similar argument in Venkatesh Yeshwant v. Emperor A.I.R. 1938 Nag. 513 when an abuse of power by the then Congress Government of the Province was in question. The Earl of Birkenhead refused to accept something similar in Secretary of State for Home Affairs v. O'Brien1923 A.O. 603 and in (1928) A.C. 459 Lord Hailsham said that that would be a "startling result." Such fundamental rights, safeguarded under the constitution with elaborate and anxious care and upheld time and again by the highest tribunals of the realm in language of the utmost vigour, cannot be swept away by implication or removed by some sweeping generality. No one doubts the right and the power of the proper authority to remove, but the removal must be express and unmistakable; and this applies whatever Government be in power, and whether the country is at peace or at war.