GUPTA, J. - (1.) THESE twenty five writ petitions, the particulars of which are given in the schedule annexed to this order, have been filed in this Court under Article 226 of the Constitution of Indis for writs of habeas corpus or for any other appropriate writ, order or direction for the release of the detenues, who have been detained under the provisions of Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'misa' ). Some of these petitions have been filed by the detenues themselves while some others have been filed by the near relatives of the respective detenues. The petitioners have challenged the detention and continuance of detention of the detenues on various grounds.
(2.) WHEN these petitions were set down for hearing before us, at the outset, learned Additional Advocate General, appearing for the State of Rajasthan and Mr. S. K. Mal Lodha, appearing for the Union of India, raised preliminary objections to the maintainability of these writ petitions and to the jurisdiction of this Court to hear and decide them. As the preliminary objections raised on behalf of the respondents in respect of all these writ petitions are identical and as common arguments have been advanced before us by the learned counsel for the parties, it would be convenient to deal with them by a common order. The main contentions raised by Dr. Tiwari, learned Additional Advocate General, on behalf of the State of Rajasthan were two fold. In the first instance it was urged by him that all these writ petitions were not maintainable in view of the Proclamation of Emergency, issued by the President of India on June 25,1975 under Article 352 (1) of the Constitution of India and the Presidential Order based upon it promulgated by the President on June 27, 1975 under Article 359 (I) of the Constitution of India. It was argued by the learned counsel that these petitions in substance seek to enforce the fundamental right of personal liberty guaranteed under Articles 21 and 22 of the Constitution of India but in view of the aforesaid Presidential Order, the right to move any Court for enforcement of the rights guaranteed under Articles 21 and 22 of the Constitution has been suspended and the petitioners, therefore, cannot challenge the detention of the datenues on any ground whatsoever and as such the writ petitions are not maintainable. In the second place it has been argued by the learned counsel that this Court has no jurisdiction to enter upon an enquiry into the question as to whether the detention of the detenues was lawful, in view of the recent amendments made in the Constitution of India by the 38th and 39th Amendment Acts and the amendments made in the MISA, particularly the introduction of sections therein. It is urged that the grounds on which the detention of the detenues have been challenged in these petitions cannot be considered be this Court. In substance it has been argued that the jurisdiction of this Court to issue writs of habeas corpus in respect of persons detained under section 3 (1) (a) (11) of MISA no longer exists. It was lastly argued by Mr. Tiwari that in any view of the matter, the area of judicial review by this Court in respect of matters of detention under MISA is extremely narrow, if the same exists at all. Mr. S. K. Mal Lodha, appearing for the Union of India supported the aforesaid contentions raised by the learned Additional Advocate General and also urged that the amendments introduced in Articles 123, 352 and 359 of the Constitution could not be challenged by the petitioners and the Ordinances, Proclamations and Orders issued thereunder could not also be challenged in view of the provisions of 38th and 39th Constitution Amendment Acts and that the various amendments made in MISA could not be challenged as the said Act has been included in the 9th Schedule annexed to the Constitution, by 39tn Amendment Act. It was argued that the declaration and continuance of emergency are not justiciable and account of the provisions of clause (5) introduced in Article 352 of the Constitution by the 38th Amendment Act. It was further argued by the Lodha that the question of legality of detention should be considered with reference to the law existing on the date of hearing. It was, therefore, urged on behalf of the respondents that the writ petitions were not maintainable and this Court has not jurisdiction to hear and decide them on merits. On the other hand, it was contended by Mr. G. M. Lodha and Mr. M. B. L. Bhargava, appearing for some of the petitioners that inspite of all the amendments made in the Constitution and the MISA, the power of judicial review by this Court in the matter of detention as also in respect of the proclamation and continuance of emergency still remains and this Court is entitled to consider the question as to whether the executive actions could be justified with reference to some valid law and that the power of this Court atleast extends to the matters specified in the order of this Court in Shamsher Singh vs. State of Rajasthan (1 ). It was also argued that the amendments made in the Constitution of India by the 38th and 39th Amendment Acts were void and invalid as they seek to alter the basic structure or basic features of the Constitution and interfere with the supremacy of the Rule of Law. It was also argued that no real emergency existed and as such the proclamation of Emergency issued by the President of India on June 25, 1975 and the continuance of Emergency proclaimed in the year 1971 were invalid and mala fide. Learned counsel also challenged the validity of amendments made in MISA, particularly sections 16a and 18 thereof on the ground that they rendered the power of judicial review of this Court under Article 226 of the Constitution nugatory or at least illusory. In respect of the first contention, it was urged by Dr. Tewari that by the Presidential Order issued under Article 359 (1) of the Constitution, the fundamental rights conferred by Articles 14, 21, and 22 were suspended for all purposes and that the detenues had no fundamental right which could be enforced by means of these writ petitions in the Court. Learned counsel argued that the right to personal liberty was enshrined in Articles 21 and 22 of the Constitution. It was urged that in the first place there was no natural or common law right of personal liberty and in the second place, if there was any such right it had no existence as a natural or common law right after the right to personal liberty was incorporated in Article 21 of the Constitution It was also argued that after the enforcement of the right of personal liberty, guaranteed under Article 21, has been suspended by the Presidential Order, the executive action resulting in the detention of persons, even if it is not supported by any law, still could not be challenged in this Court, as in substance the challenge would be an attempt to enforce the right to personal liberty which has been taken away. It was argued by the learned Additional Advocate General that the Presidential Order imposed a blanket ban in respect of all challenges to the validity of the orders of detention, on what ever grounds, as in effect it would amount to enforcement of the fundamental right of personal liberty and thus the detention of the detenues was beyond the judicial scrutiny on any ground whatsoever. Learned Additional Advocate General placed reliance upon some passages from the judgment of their Lordships of the Supreme Court in Kesavananda Bharati Sripadagalvaru vs. State of Kerala (2) in support of the proposition that apart from the Constitution and the laws of the State there was no enforceable natural or common law rights. It was also urged that the decision of this Court in Shamsher Singh's case (1) holding that the right of judicial review was available to a limited extent in the matter of detention under MISA could no longer be made applicable, in view of the various changes introduced in the MISA and the Constitution after the case of Shamsher Singh was decided by this Court on July 15, 1975, particularly as section 16a of the MISA has been amended extensively and section 18 has been added to MISA and further MISA has been included in the 9th Schedule by the Constitution 39th Amendment Act and various provisions of the Constitution relating to such matters have also been amended by the 38th Amendment Act. However, learned counsel appearing for the petitioners contested these submissions. In order to appreciate the rival contentions advanced by the learned counsel for the parties, it would be proper to refer to the relevant provisions of the Constitution of India. Articles 21 and 22 of the Constitution are as under : - "21. No person shall be deprived of his life or personal liberty except according to procedure established by law. 22, (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be desponded by, a legal practitioner of his choice. (2) Every person who is arrested and detained is custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) shall apply, (a) to any person who for the time being is an enemy, alien or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless : (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7 ). (5) When any 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, communicate 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. (6) Nothing in clause (5) shall require the authority making any such as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe: - (a) the circumstance under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4 ). (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and; (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)," Article 123 of the Constitution years as under: - "123 Power of President to promulgate Ordinances during recess of Parliament.- - (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance - (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President. " (3) xx xx xx (4) Notwithstanding anything in this Constitution the satisfaction of the President mentioned in clause (1) shall be final conclusive and shall not be questioned in any court on any ground. " Clause (4) was introduced in Article 123 by the Constitution (38th Amendment) Act, 1975, which came into force on August 1, 1975. Article 352 of the Constitution which relates to Proclamation of Emergency runs as follows - "352 (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Pro-claimation, make a declaration to that effect, (2) A proclamation issued under clause (1)- (a) may be revoked by a subsequent Proclamation: (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both the Houses of Parliament. Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of Mates, but no resolution with respect to such Proclamation has been passed by the House of the People before the cess to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. (4) The power conferred on the President by this Article shall include the power to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or or internal disturbance whether or not there is a proclamation already issued by the President under clause (1) and such proclamation is in operation. 5. Notwithstanding anything in this Constitution - (A) The satisfaction of the President mentioned in clause (1) and (3) shall be final and conclusive and shall not be questioned in any court on any ground (B) Subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question on any ground, regarding the validty of - (i) A declaration made by proclamation by the president to the effect stated in clause (1) or (ii) The continued operation of such proclamation". It may be mentioned here that clause 4 and 5 in Art. 352 have been introduced by the Constitution (38th Amendment) Act which came into force on August 1, 1975 Under the provisions of clause (1) of Article 352, the President of India issued the following Proclamation of Emergency on June 25, 1975. 'proclamation of Emergency' "in exercise of the powers conferred by clause (1) of Art. 352 of the Constitution, 1, Fakhruddin Ali Ahmed, President of India, by this Proclaima-tion declare that a grave emergency exists whereby the security of India is threatened by internal disturbance. " New Delhi, The 25th June, 1975 F. A. AHMED PRESIDENT. "
(3.) ART. 359 of the Constitution runs as under - "359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the rights enforcement by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (1a) While an order made under clause (1) mentioning any of the rights conferred by part 3 is in operation, nothing in that part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. " Clause (1a) of Article 359 was also introduced by the 38th Amendment Act, which came into force on August 1, 1975, in exercise of the powers conferred upon him by clause (1) of Article 359 of the Constitution the President of India issued the following order on June 27, 1975 (as amended on June 29, 1975) - "g. S. R. 361 (E ).- In Exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution, and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. This order shall extend to the whole of the territory of India. This order shall be in addition to and not in derogation of any Order made before the date of this Order under clause (1) of Article 359 of the Constitution. No. II/16013/1/75-S&p (D) II S. L. Khurana, Secy. " From a perusal of the aforesaid Presidential Order issued under Article 359 (1) of the Constitution, there can be no doubt that the right of a person to move any court, including this Court, for the enforcement of fundamental rights conferred upon him by Articles 14, 21 and 22 of the Constitution has been suspended during the period the Proclamation of Emergency issued by the President under Article 352 (1) of the Constitution remains in force. It is also to be noticed that the Presidential Order issued on June 27, 1975 is in general terms and is all comprehensive as it is not restric-tive to detentions made under any specified law. On account of the provisions of Article 358 of the Constitution, the fundamental right under Article 19 of the Constitution stood automatically suspended with effect from the date of declaration of Emergency. However, the question that arises now for determination is as to whether the right of a person to move this Court under Article 226 of the Constitution for a writ of habeas corpus is also taken away on account of the suspension of the right of the person to move this Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution. It cannot be disputed that the power and jurisdiction of this Court to issue writs, orders and directions under Article 22 of the Constitution of India has not been suspended but what is urged before us on behalf of the respondents is that a writ in the nature of habeas corpus is in substance a petition to enforce the fundamental right of personal liberty guaranteed under Article 21 of the Constitution and the petitioner cannot be permitted to do so in view of the Presidential order issued under Article 359 (1) of the Constitution and as such the petitioners have no locus standi to file these petitions in this Court. ;