Wanchoo, J. - (1.) These two petitions under Art. 32 of the Constitution for a writ of habeas corpus raise common questions and will be dealt with together. The main points raised in these petitions have been dealt with in K. Ananda Nambiar vs. Chief Secretary, Government of Madras, Writ Petns. Nos. 47 and 61 of 1965, in which judgment is being delivered today. It remains now to consider the other points that arise specially in these petitions.
(2.) The petitioners are members of the Left Communist Party and were ordered to be detained along with others numbering 140 in all under R. 30 (1) (b) of the Defence of India Rules (hereinafter referred to as the Rules) by orders of the Governor of Kerala passed on December 29, 1964. In pursuance of these orders the petitioners were arrested on December 30, 1964. At that time the State of Kerala was being governed by virtue of the Proclamation of the President, dated September 10, 1964. By this Proclamation the President assumed to himself all functions of the Government of the State of Kerala and all powers vested in or exercisable by the Governor of that State and declared that the powers of the legislature of the said State would be exercisable by or under the authority of Parliament. The Proclamation also provided that in the exercise of the functions and powers assumed by the President with respect of the governance of the State, the President would act to such extent as he thought fit through the Governor of the said State. Certain other incidental provisions were also made in the Proclamation with which however we are not concerned. The case of the petitioners is that these orders of detention were mala fide inasmuch as a general election was going to be held in Kerala in the beginning of March 1965. In order to damage the prospects of the Left Communist Party in the election and to improve that of the Congress Party these orders of detention were made under the Rules.
(3.) After the elections were over, the Left Communist Party emerged as the largest single party. There was an apprehension that if the Proclamation was withdrawn and a party government came into power in the State, the petitioners and others like them might be released. Consequently it is said that on March 4, 1965, the order of the Governor dated December 29, 1964 was cancelled and another order was made on the same date (namely, March 4, 1965) by the Central Government in the name of the President ordering the detention of the petitioners under the Rules. The petitioners contend that this order was also mala fide, as it was made to circumvent the possibility of the petitioners' release in case a party-government came into power in the State of Kerala after the elections. The petitioners further contend that there was no application of the mind of the authority when the orders of detention were passed on December 29, 1964 and March 4, 1965. Further it is contended that there was no material before the Central Government on March 4, 1965 on the basis of which the orders of detention could be passed and therefore the orders passed on that date were illegal. Lastly, it is urged that if the orders of detention passed on December 29, 1964 were good, the only way in which they could be cancelled was by release of the petitioners and they could not be replaced by other orders of detention. It is further urged that the order of cancellation was passed on March 4, 1965 and so was the new order of detention; but both these orders were served on them on March 6, 1965. It is said that the Governer's order dated December 29, 1964 having been cancelled on March 4, 1965 came to an end that day while the President's order having been served on the petitioners on March 6, 1965 began from that day and therefore there was no warrant for detention between March 4 and March 6, 1965.;