HAROOBHAI M MEHTA Vs. STATE OF GUJARAT
LAWS(GJH)-1966-1-5
HIGH COURT OF GUJARAT
Decided on January 25,1966

HAROOBHAI M.MEHTA Appellant
VERSUS
STATE Respondents

JUDGEMENT

N.M.MIABHOY, N.K.VAKIL - (1.) These five petitions are filed under Article 226 of the Constitution of India and sec. 491(1)(b) of the Criminal Procedure Code (Act No. V of 1898). Each of the five petitioners was ordered to be detained by a separate order dated December 29 1964 by the State of Gujarat. The orders are in identical terms. By those orders the State of Gujarat directed under clauses (1) and (4) of rule 30 of the Defence of India Rules 1962 (hereafter called the Rules) that petitioners be detained in the Rajkot Central Prison. The orders stated that the State Government was satisfied in regard to the five petitioners that it was necessary to detain them with a view to preventing them from acting in any manner prejudicial to (i) the defence of India; (ii) the public safety; and (iii) the maintenance of public order. The orders are signed by the fourth respondent. In accordance with these orders the five petitioners were arrested on December 30 1964 and since then they are under detention under those orders. As required by rule 30-A of the Rules the State Government reviewed within the prescribed time-limit orders of detentions and by its orders dated June 25 1965 the State Govern- ment decided that the orders of detentions should be continued until further orders. These orders are signed by the fifth respondent on behalf of the State of Gujarat. Petitioners have joined six entities as respondents to their petitions. The first respondent is the Union of India and the second respondent is Mr. Gulzarilal Nanda Home Minister Union of India. These two respondents have appeared before us through their Advocate but they have not filed any affidavit in reply to show cause against petitioners detentions. The third respondent is the State of Gujarat. The forth respondent is Mr. F. J. Heredia Secretary to the Government of Gujarat Home and Civil Supplies Department (Special) Ahmedabad. The fifth respondent is Mr. G. D. Naik Under Secretary to the Government of Gujarat The fourth and the fifth respondents have been joined in the petitions as they have signed the orders of detentions and their continuation respectively. The sixth respondent is the Superin- tendent Rajkot Central Prison Rajkot under whose custody petitioners were at the time when they presented the above petitions. All these respondents have also appeared to show cause in response to rules nisi issued against them. The fourth respondent has filed his affidavit in reply challenging the factual contentions and the legal submissions in the petitions. Petitions raise common questions of law and facts. For this reason all these petitions were set down for hearing on one and the same day. Some of the questions of law raised in these petitions also happened to be raised in a number of other petitions presented by other detenues. Therefore we decided that we should permit such of the learned Advocates as appear in those other petitions to intervene in the present petitions so that their arguments in support of the common legal submissions might also be heard and those legal submissions might be decided after hearing them. Some of the learned Advocates intervened accordingly. On behalf of the present petitioners Mr. Haroobhai M. Mehta petitioner in Special Criminal Application No. 21 of 1965 addressed us ably and fully both on questions of law and fact. Mr. J. G. Shah was good enough to appear amicus curiae in Special Criminal Application No. 25 of 1965. He sup- ported and supplemented the arguments of Mr. Haroobhai Mehta. Amongst the petitioners only Mr. Chimanbhai Amichand petitioner in Special Criminal Application No. 23 of 1965 addressed us. His address was confined only to the question as to whether there was or was not justification for the allegations made by the fourth respondent in his affidavit in reply that the pro-Chinese Wing of the communists to which petitioners belong was anti-national in its attitude. None of the other three petitioners addressed us on any of the topics. They content them- selves by stating that they adopted all the arguments which were urged by Mr. Haroobhai Mehta. Mr. Daru and Mr. Shethna appeared as intervening Advocates. They also addressed us arguments on common questions of law.
(2.) In order to understand and appreciate the points of law raised in the petitions and the legal submissions made thereon it will be convenient to mention the Constitutional and the legal provisions and instruments in the setting of which the impugned orders of detention came to be passed. On October 26 1962 the President of India having been satisfied that a grave national emergency existed whereby the security of India was threatened by the Chinese aggression issued a Proclamation declaring an emergency under Article 352 of the Constitution of India. That declaration of emergency was laid before both Houses of Parliament on November 8 1962 and was approved by Rajya Sabha on November 13 1962 and by Lok Sabha on November 14 1962 After the Proclamation of Emergency as the Parliament was not in session and as the President was satisfied that circumstances existed which rendered it necessary for him to take immediate action for exercise of powers conferred by clause (2) of Article 123 of the Constitution of India he promulgated the Defence of India Ordinance 1962 (4 of 1962) on the same date on which the Proclama- tion of Emergency was issued. By sec. 3 of the Ordinance the Central Government was empowered to make such rules as might appear to be necessary or expedient for securing the defence of India and civil defence public safety maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community by publishing a notification in the Official Gazette. In exercise of that power the Central Government promulgated the Defence of India Rules 1962 by notification in the Official Gazette Extraordinary dated November 5 1961 During the operation of the Proclamation of Emergency the President issued on November 3 1962 an Order in exercise of the powers conferred upon him by Article 359 of the Constitution 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 of Emergency issued under clause (1) of Article 352 thereof on the 26th October 1962 is in force if such person has been deprived of any such rights under the Defence of India Ordinance 1962 (4 of 1962) or any rule or order made thereunder. This Presidential Order was subsequently amended on November 11 1962 by introduction of Article 14 in the original Order of November 3 1962 so that the right to move any Court became suspended not only for the enforcement of the fundamental rights guaranteed under Articles 21 and 22 but also the right guaranteed under Article 14 of the Constitution. In the meantime the President amended on 3rd November 1962 the Defence of India Ordinance by the Defence of India (Amendment) Ordinance 1962 On December 12 1962 the Parliament enacted the Defence of India Act (No. 51 of 1962) (hereafter called the Act). Sec. 48 of the Act repealed the Defence of India Ordinance 1962 and the Defence of India (Amendment) Ordinance 1962 However. sub-sec. (2) of sec. 48 of the Act enacted that the rules already made under the Defence of India Ordinance 1962 as amended by the Defence of India (Amendment) Ordinance 1962 shall be deemed to have been made under the Act as if the Act had commenced on October 26 1962 Rule 30 of the Rules empowered the Central Government or the State Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the public safety the maintenance of public order Indias relations with foreign powers the maintenance of peaceful conditions in any part of India the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community it is necessary so to do to make among other orders an order directing that he be detained. The impugned detention orders have been passed by the State Government in pursuance of this power conferred by rule 30 sub-rule (1) clause (b).
(3.) Now the legal submissions common to these and other petitions raised before us are three in number. The first submission which may be described as the main submission is that the Presidential Order of November 3 1962 as amended by the order of November 11 1962 is violative of the guarantee against discrimination enshrined in Article 14 and that therefore it is void under Article 13 of the Constitution. The second submission is that the detention of all the petitioners is in violation of the fundamental right enshrined in clause (5) of Article 22 of the Constitution. That clause directs that when a person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be com- municate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is common ground that in regard to all the detention orders made under the Rules no grounds were furnished to the detenues nor was any opportunity afforded to any of them to make a representa- tion against the orders of detentions. The detenues contend that in spite of the Presidential Order depriving them of the right to move any Court for the enforcement of the rights conferred by clause (5) of Article 22 they have a right to approach this Court for the violation of those rights inasmuch as the Presidential Order itself is void as being violative of Article 14 of the Constitution. Thus the second submission is a consequence of the first submission. The third submission is that even if the Presidential Order is valid petitioners further detention in violation of clause (5) of Article 22 is invalid and that they are entitled to an order of release because they have not been deprived of the rights under clause (S) in pursuance of the impugned orders of detention but dehors the same. This contention is based on an interpretation which detenues seek to place upon the latter part of the Presidential Order which imposes a condition precedent for the suspension of the right to move any Court for enforcement of the above fundamental rights. The condition precedent is that the aforesaid fundamental rights must have been deprived of amongst others by an order passed under the Ordinance (Act) or the Rules or an order thereunder. The detenues contention is that the impugned orders of detention do not deprive them of the aforesaid rights. They contend that they have been deprived of those rights outside and dehors the impugned order of detention and that thereFore they have a right to approach the Court for the enforcement of those rights and the jurisdiction of this Court is not taken away to issue appropriate writs in enforcement of those rights The other points which are raised by peti- tioners are as follows:- (1) That the impugned orders were passed without the satisfaction of the State Government. (2) That they were passed at the behest of the second respondent. (3) That the were invalid inasmuch as they were made in mala fide exercise of the powers of the Government. (4) That the continuation of the detention orders was invalid inasmuch as the orders were continued for a purpose which is not covered by the provisions of rule 30 and (5) that in any case this is a fit case for permiting petitioners to cross- examine the fourth respondent inasmuch as it is the case of peti- tioners that the detention orders were made on the basis of incorrect facts and that in view of the fact that petitioners and the fourth respondent were at variance in regard to certain important matters the only way to elicit the truth in the matter was by cross- examining the fourth respondent. In addition to this Mr. J. G. Shah raises the contention that the order of the President made under Article 359 of the Constitution did not survive after the repeal of the Defence of India Ordinance and was not good order under the Act. ;


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