Decided on September 07,1965

STATE OF BIHAR Respondents


- (1.) Dr. Ram Manohar Lohia, a member of the Lok Sabha, has moved the Court under Article 32 of the Constitution for a writ of habeas corpus directing his release from detention under an order passed by the District Magistrate of Patna. The order was purported to have been made under R. 30 (1) (b) of the Defence of India Rules, 1962. Dr. Lohia, who argued his case in person, based his claim to be released on a number of grounds. I do not propose to deal with all these grounds for I have come to the conclusion that he is entitled to be released on one of them and to the discussion of that ground alone I will confine any judgment. With regard to his other grounds I will content myself only with the observation that as at present advised. I have not been impressed by them. The order of detention runs thus: ""Where I, J. N. Sahu, District Magistrate, Patna, am satisfied........that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order, it is necessary to make an order that he be detained. Now, therefore, in exercise of the powers conferred by clause (b) of sub-rule (1) of rule 30 of the Defence of India Rules, 1962 read with Notification No. 180/CW........ I hereby direct that Dr. Ram Manohar Lohia be arrested and detained in the Central Jail, Hazaribagh, until further orders." Now the point made by Dr. Lohia is that this order is not in terms of the rule under which it purports to have been made and, therefore, furnishes no legal justification for detention. The reason why it is said that the order is not in terms of the rule is that the rule does not justify the detention of a person to prevent him from acting in a manner prejudicial to the maintenance of law and order while the order directs detention for such purpose. It is admitted that the rule provides for an order of detention being made to prevent acts prejudicial to the maintenance of public order, but it is said that public order and law and order are not the same thing, and, therefore, though an order of detention to prevent acts prejudicial to public order might be justifiable, a similar order to prevent acts prejudicial to law and order would not be justified by the rule. It seems to me that this contention is well founded.
(2.) Before proceeding to state my reasons for this view, I have to dispose of an argument in bar advanced by the respondent State. That argument is that the petitioner has, in view of a certain order of the President to which I will presently refer, no right to move the Court under Article 32 for his release. It is said that we cannot, therefore, hear Dr. Lohia's application at all. To appreciate this contention, certain facts have to be stated and I proceed to do so at once.
(3.) Article 352 of the Constitution gives the President of India a power to declare by Proclamation that a grave emergency exists whereby the security of India is threatened inter alia by external aggression. On October 26, 1962, the President issued a Proclamation under this article that such an emergency existed. This presumably was done in view of China's attack on the north eastern frontiers of India in September 1962. On the same day as the Proclamation was made, the President passed the Defence of India Ordinance and Rules were then made thereunder on November 5, 1962. The Ordinance was later, on December 12, 1962, replaced by the Defence of India Act, 1962 which however continued in force the rules made under the Ordinance. On November 3, 1962, the President made an order under Article 359 (1) which he was entitled to do, declaring "that the right of any person to move any Court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 or any rule or order made thereunder." There is no doubt that the reference in this Order to the "Defence of India Ordinance, 1962" must after that Ordinance was replaced by the Act as earlier stated, be understood as a reference to the Act: See Mohan Chowdhury v. Chief Commr. Tripura, AIR 1964 SC 173. I should now state that the Proclamation is still in force.;

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