- (1.)THIS order disposes of two petitions made by Govind Prasad Shrivastava and Balkrishan Gupta for the issue of the writs of Habeas Corpus under Article 226, Constitution of India. The applicants were arrested and detained by means of warrants issued by the Chief Commissioner, Bhopal, under the Preventive Detention Act 1950.
(2.)THE preliminary objection raised by the Government advocate relates to the jurisdiction of this Court in respect of the applications. His argument is that Article 226 is only meant to lay down the powers which the High Courts could exercise, only if they possessed those powers; in other words, if a High Court does not already possess the powers specified in Article 226 of the Constitution, the aforesaid Article does not empower it to exercise them and there is no remedy for the applicants except to go to the Supreme Court under Article 32 (1) for the enforcement of fundamental right.
(3.)THE learned Government Advocate has cited Anant Bhaskar v. State A. I. R. (37) 1959 Madh. B. 60; in which the majority of the learned Judges held the view: Unlike Article 32 of the Constitution, Article 226 does not provide for any remedy which, apart from the existing law, could be available to a person for enforcement of any of the rights dealt with is Part III of the Constitution, i. e. fundamental rights. Article 226 must be read subject to Article 32 (3 ). Article 226 only mentions some of the powers which. If law made by Parliament or other legislature so provides, may be exercised by the High Courts under the circumstances and conditions prescribed by such law. Bat so long as this is act done, the powers conferred by Article 226 must remain ineffective except in so far as they can be exercised under she existing law. The cornerstone of the abovementioned ruling is the distinction drawn by the learned Judges between the meaning of the words "jurisdiction", and "power". "jurisdiction", according to the view taken by the learned Judges, is the authority conferred upon a tribunal to determine a matter, while "powers" are the means by which effect is given by the Courts to its determination. With this distinction in view, they quoted Article 225 of the Constitution which lays down that the jurisdiction of and the law to be administered in any existing High Court and the respective powers of the Judges, thereof in relation to the administration of justice, shall be the same as immediately before the commencement of the Constitution.
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