JASWANT SINGH, J. (for himself and Ray, C.J.) - (1.) THE Judgments of the court were delivered by
(2.) THESE appeals, some of which have been preferred by certificates granted under Articles 133 and 134 (l) (c) of the Constitution and others by special leave granted by this court under Article 136 of the Constitution, and which are directed against various final and interim judgments and orders of the High courts of Bombay and Karnataka passed in Writ Petition filed under Articles 226 and 227 of the Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974) (hereinafter referred to as the Act') complaining of certain constraints imposed on them under orders made under S. 5 of the Act and claiming facilities in excess of those provided in the said orders, shall be disposed of by this judgment. A gist of the orders appealed against and particulars of the petitions in which they have been passed are given in the sub-joined table for facility of reference: JUDGEMENT_834_1_1977Html1.htm Clauses 9(iii), 10, 12(ii) and (xi), 19, 20, 21, 23, 24 and 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as "the Maharashtra Conditions of Detention Order, 1974") which have been struck down by the High court of Bombay read as under: (iii) Security prisoners shall not be allowed to supplement their diet even at their own expense. Any security prisoner who wishes to supplement his diet (MI medical grounds, may apply, to toe Commissioner or the Superintendent, as the case maybe. The Commissioner or the Superintendent shall get him examined by a Medical Officer attached to the place of detention who may order such modification of, or addition to, his diet, as he may consider necessary on medical grounds. 10. Supply of funds.-(i) A security prisoner may, with the previous sanction of the detaining authority, receive from a specified relative or friend at intervals of not less than a month, funds not exceeding Rs.30.00 per month and may spend these funds or a similar sum from his own private funds on such objects and in such manner as may be permissible under the rules, in case in which for 846 want of funds any security prisoners are compelled to do without small amenities which their fellow prisoners enjoy, such amenities may, if considered absolutely necessary by the Commissioner or the Superintendent be supplied to them at government costs. (ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of the security prisoners concerned. (iii) Amounts in excess of those prescribed in sub-clause (i) may be received by the Commissioner or the Superintendent on behalf of security prisoners, but they shall not be spent in any month beyond the limits laid down in the said sublause. 12. * * * (ii) The number of interviews which a security prisoner may be permitted to have shall not ordinarily exceed one per month. * * * (xi) In addition to the interviews permissible under the preceding provisions of this clause, a security prisoner may, with the permission of the detaining authority, be granted not more than two special interviews, for the settlement of his business or professional affairs, such interviews shall ordinarily take place within a period not exceeding two months from the date of detention of the security prisoner concerned and shall be conducted in accordance with the provisions of this clause as regards place, duration and conditions of the interview, and the proceedings shall be strictly confined to the objects for which the interview is granted. . . . 19. Medical attendance.(i) The Superintendent of the Hospital or the Civil Surgeon, as the case may be, shall depute a medical office-' to visit each security prisoner detained in a police lock-up and report of his physical condition. The said Medical Officer shall visit the prisoner at least once a week and more often if the Superintendent of the Hospital or the Civil Surgeon or the Commissioner, as the case may be, thinks fit, and submit the report on his condition to the Commissioner or the detaining authority, after the first day of each month and at any other time he considers necessary. (ii) Security prisoner detained in a jail or sub-jail shall in the event of illness, be treated in the same way as convicted criminal prisoner or treated under the rules made under the Prisoners Act, 1894. 20. Toilet.(i) Every security prisoner shall be supplied with neem or babul stick at government expense. (ii) Every security prisoner shall be supplied with one cake of jail made toilet soap per month for bathing at government expense. The weight of such cake shall be 113 grams approximately and if jail made soap is not available in any medium quality, toilet soap manufactured in India and available locally shall be supplied. 21. Service of barbers, etc.-(i) A security prisoner shall not be permitted to have shaving equipment of his own. (ii) Every security prisoner shall be allowed to have the services of the jail barber once a week. 23. Smoking and tobacco.-Except cigarettes or bidies and chewing tobacco, which are available at the jail canteen, no other facilities to smoke or chew tobacco shall be permitted. 24. Games. Security prisoners shall not be permitted to play indoor games like cards or to play chess, draughts and carrom. 31. Power to withhold any concession or facilities. The State government may, by general or special order, withhold any of the concessions or facilities provided by or under any of the provisions of this order in respect of any security prisoner or class of security prisoners, and for such period or periods, as the State government may, from time to time specify. 847 Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate government may have no objection to the issue of special orders permitting the detenus to receive or purchase toilet requisites, toilet soap and to consult private doctors in case of genuine necessity if an application is made to it in that behalf. submitted that the right of any person to move any court for the enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of the Constitution having been suspended by virtue of the Presidential Orders dated 27/06/1975 and 8/01/1976 issued under clause (1) of Article 359 of the Constitution (which are absolute in terms) for the period during which the proclamation of emergency made on 25/06/1975 under clause (1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Article 226 or Article 227 of the Constitution for issue of a writ, order or direction to enforce any right to personal liberty. He has further urged that since it is for the appropriate government to specify the place of a detenu's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others with a view to prevent his contact with the outside world and since what was sought to be enforced in the instant cases by means of the applications filed by or on behalf of the detenus under Articles 226 and 227 of the Constitution in the aforesaid High courts was nothing but various facets of personal liberty under Articles 19, 21 and 22 of the Constitution, the applications were not maintainable and the High courts were not competent to deal - with them and to either strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 or to issue the aforesaid directions to the detaining authorities.
(3.) MR. Seervai, MR. Ashok Sen, MR. Desai and MR. Dattar, learned Counsels for the detenus have, on the other hand, emphasized: (1) that preventive detention does not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they can not be punitively treated; (2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration; (3) that the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency and the exercise of power under S. 5 of the Act must have a reasonable nexus with the purpose for which the power is conferred; (4) that if according to the majority judgment in Additional District Magistrate, Jabalpur v. Shivakant Shukla even habeas corpus could issue in cases where the order is not duly authenticated then the conditions of detention can certainly be scrutinized and relief can be granted if those conditions are found to be illegal or ultra vires; (5) that the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974, being ultra vires and violative of the principles of reasonableness and legality have rightly been struck down by the High court of Bombay; 848 (6) that a curtain cannot be drawn round the detenu and while he can be cut off from undesirable contacts, he cannot be cut off from unobjectionable contacts; (7) that if the place of detention mentioned in a detention order is a prison, then the detenu would be governed by the Prisons Act but not if the detenu is lodged elsewhere; 8. that the detenus' grievances are not 'echoes' of Article 19 of the Constitution but are the echoes of the 'totality' of law; (9) that it is not right to say that what is not contained in Article 19 of the Constitution is contained in Article 21 of the Constitution as this submission ignores Articles 15, 25 and 26 of the Constitution which are applicable even to non-citizens. The learned Additional Solicitor General has, in his rejoinder, contended that while total release is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27/06/1975 and 8/01/1976 issued under Article 359(1) of the Constitution which are unconditional, even conditions of detention cannot be enforced by moving a court during the period of emergency and that the contention based upon the principles of legality and reasonableness and doctrine of ultra vires is misconceived. The Additional Solicitor General has further submitted that legality has to be understood as meaning the authority of law and if so understood, a person detained in accordance with the conditions framed under S. 5 of the Act cannot complain that the conditions are illegal or ultra vires, broader challenges based on fundamental rights not being available ; that the principle of reasonableness and the doctrine of ultra vires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague and indeterminate philosophical theories like the totality of law; that as the line of demarcation between preventive and punitive detention which is easily perceivable at the stage of detention becomes progressively elusive and hazy when one comes to conditions of detention, there is little scope for generalisation; that curtain has to be drawn round a detenu to ensure effectiveness of detention which cannot be sacrificed in the interest of security of the State; that the observations made by the majority in Shivakant Shukla's case regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious cases where the Executive itself could not and would not seek to defend a detention order and can be of no assistance in the present cases where the detenus seek to enforce a right to do something or to get something which is not conferred on and given to them by law; that any right to personal liberty or any facet or aspect thereof has to be found in some constitutional provision to be enforced in normal times and ex hypothesi to become unenforceable during an emergency and reference to Articles 15, 25 and 26 of the Constitution completely ignores the fact that these rights postulate a free citizen and cannot be enforced independently of Article 21 or Article 19 of the Constitution and in any case, the rights claimed in the present cases have no relation to those articles.;