Makhan Singh Vs.

State of Punjab (and connected appeals)

Facts of the case In the wake of the Chinese aggression commencing form the 8th September, 1962, the President declared emergency in India #ctober, 1962$ %he &efence of India #rdinance1962 '(o$ ) of 1962* was also prom lgated on that day$ +n ordinance prom lgtaed on (o,ember !, 1962 s spended the rights of citi-ens to mo,e to any Co rt for the enforcement of the rights conferred by +rt$ 21 and 22 of the Constit tion for the period d ring which the proclamation of emergency iss ed on #ctober 26, 1962 wo ld be in force. nder article !"9'1* of the Indian Constit tion$ #n (o,ember 6, 1962, the r les framed by the Central /o,ernment were p blished$ %he amendment of the Presidential order passed on 11 (o,ember, added +rticle 1) of the consti tion as well$ #n &ecember, 6, 1962, 0 le !1 as originally framed was amended and 0 le !12+ added$ #n &ecember 12, 1962 the +ct was made$ Section )8'1* of the +ct pro,ided for the repeal of the #rdinances (os$ ) and 6 of 1962$ Section )8'2* pro,ides that notwithstanding s ch repeal, any r les made, anything done or any action taken had commenced on #ctober 26, 1962$ 3ence, the 0 les made nder the #rdinance contin ed to be the 0 les nder the +ct, and the appellants had been detained nder 0 le !1'1*'b*$ In totality there were 26 criminal appeals, nine against the decision of the P n4ab 3igh Co rt, and 15 against the deecision of the 6ombay 3igh Co rt$ +ll the appellants were deten es who had been detained by the P n4ab and the 7aharashtra State /o,ernments nder 0 le !1'1*'b* of the &efence of India 0 les 'hereinafter called the 0 les* made by the Central /o,ernment in e8ercise of the powers conferred on it by the &efence of India #rdinance$ %hey had applied to the P n4ab and the 6ombay 3igh Co rts respecti,ely nder section )91 '1*'b* of the Code of Criminal Proced re and alleged that they had been improperly and illegally detained$ %heir contention was that s$ !'2*'1"*'i* and s$ )1 of the &efence of India +ct, 1962 '(o$ "1 nder the aforesaid two #rdinances shall be deemed to ha,e been made, done or taken nder this +ct as if this +ct nder article !"2 of the constit tion on the 26

of 1962* and 0 le !1'1*'b* nder which they ha,e been detained were constit tionally in,alid, beca se they contra,ened their f ndamental rights nder +rticles 1), 21 and 22')*, '"* 9 '5* of the Constit tion, and so, they claimed that an order sho ld be passed in their fa,o r directing the respecti,e State /o,ernments to set them at liberty$ %hese petitions had been dismissed on the gro nd that the Presidential #rder which has been iss ed nder +rt$ !"9 of the Constit tion creates a bar which precl des them from mo,ing the 3igh Co rt nder s$ )91'1*'b* Cr$ P$ C$ %he allahabad 3igh Co rt had in similar case fa,o red the deten es, and it was this difference of opinion with the 6ombay and P n4ab 3igh Co rts which lead to the form lation of the Special 6ench for the appeal$ Relevant Laws !"ticle #$%.:hile a Proclamation of ;mergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any e8ec ti,e action which the State wo ld not for the pro,isions contained in that Part be competent to make or to take, b t any law so made shall, to the e8tent of the incompetency, cease to ha,e effect as soon as the Proclamation ceases, to operate, e8cept as respects things done or omitted to be done before the law so ceases to ha,e effect$ #$&. '1* :here a Proclamation of ;mergency is in operation, the President may be order declare that the right to mo,e any Co rt for the enforcement of s ch of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any co rt for the enforcement of the rights so mentioned shall remain s spended for the period d ring which the Proclamation is in force or for s ch shorter period as may be specified in the order$ '2* +ny order made as aforesaid may e8tend to the whole or any part of the territory of India$<

Section )9l'l*'b* ofthe Code of Criminal Proced re '+ct " of l898* pro,ided= +ny 3igh Co rt may, whene,er it drinks fit, direct 'b* that a person illegally or improperly detained in p blic or pri,ate c stody within s ch limits be set at liberty$1

!nal'sis 1%he pro,ision has been omitted in the Code of Criminal Proced re, I95!$

& ring the operation of the ;mergency from 196221969, the S preme Co rt confined its role only to an e8amination of the propriety of instances of pre,enti,e detention in terms of the applicable legislation$ %he Co rt did not endea,o r to r le on the scope and operation of the constit tionally g aranteed > ndamental 0ights d ring an ;mergency$ (or did it assert its powers of 4 dicial re,iew in terms of the constit tionally entrenched pro,isions on the S preme Co rt$ %h s in all these cases it has basically pheld the decisions of pre,enti,e detentions, and the case of 7akhan Singh is an e8ample of s ch cases$ %he main iss es considered by the Co rt in the case were the following= 1$ :hat was the tr e scope and effect of a Presidential #rder iss ed nder +rticle !"9'l*? 2$ &id the bar created by the Presidential #rder operate in respect of applications for habeas corp s made by detainees, not nder +rticle 226 of the Constit tion, b t nder section )91 ofthe Criminal Proced re Code?

%he Co rt th s considered whether +rticle !"9 of the Constit tion was to be so constr ed as to empower the President to s spend @all actions which a person may take nder a stat te or common law, if he seeks thereby to protect his liberty against nlawf l encroachment by the state or its officersA :as the effect of the Presidential #rder confined to the constit tional remedies g aranteed by +rticles !2 and 226, or wo ld the #rder also bar remedies which are conferred by ordinary stat tes, s ch as by section )9l of the Code of Criminal Proced re? %he S preme Co rt conceded that the right to claim relief nder the Code was a right which was distinct and separate from that conferred by +rticles !2 and 226 of the Constit tion$ It was stressed that what was to be e8amined was not the technical proced ral form in which the action was initiated, not whether it was by writ petition nder +rticle !2 or +rticle 226 of the Constit tion, or by proceedings sanctioned by ordinary stat e, b t rather that it was the @s bstance of the matter< which was decisi,e$ %herefore, proceedings taken nder section )91 of the Criminal Proced re Code wo ld be on the same footing as writ petitions nder the Constit tion and wo ld, with respect to pleas based on rights conferred by the +rticles specified in that Presidential #rder, be eB ally liable to attract the proced ral bar$< %he tr e test to determine whether a partic lar proceeding is barred is to e8amine the s bstance and not the form$ In the words of C stice /a4endragadkar= @ In determining the B estion as to whether a partic lar proceeding falls within the mischief of the

Presidential #rder or not, what has to be e8amined is not so m ch the form which the proceeding has taken, or the words in which the relief is claimed, as the s bstance of the matter$$$before granting the relief claimed by the citi-en, it wo ld be necessary for the Co rt to enB ire into the B estion whether any of his specified f ndamental rights ha,e been contra,ened$ If any relief cannot be granted to the citi-en witho t determining the B estion of the alleged infringement of the said specified f ndamental rights, that is a proceeding which falls nder +rt$ !"9'1* and wo ld, therefore, be hit by the Presidential #rder iss ed nder the said +rticle$ %he sweep of +rt$ !"9'1* and the Presidential #rder iss ed nder it is th s wide eno gh to incl de all claims made by citi-ens in any co rt of competent 4 risdiction when it is shown that the said claims cannot be effecti,ely ad4 dicated pon witho t e8amining the B estion as to whether the citi-en is in s bstance, seeking to enforce any of the said specified f ndamental rights$

C stice S bba 0ao dissented and arg ed that section )91 of the Code. tho gh remedial in form, post lates the e8istence of the s bstanti,e right$ 3e identified that s bstanti,e right as a common law principle that no person can be depri,ed of his or her liberty e8cept in the manner prescribed by law$ C stice S bba 0ao s pported his concl sion as to the a,ailability of a remedy nder section )91 by classifying the 3igh Co rtDs power nder the Code as p rely discretionary, and hence distinct from the ErightD to mo,e a co rt as g aranteed by +rticles !2 and 226$ Since he conceded to the Fegislat re the power to take away this s bstanti,e right, C stice S bba 0ao clearly did not deri,e the proced ral right in B estion from an implied constit tional r le of law or principle of legality$ In the absence of a principle of legality which transcends the specific > ndamental 0ights conferred by Part III of the Constit tion, the opinion e8pressed by C stice S bba 0ao is ncon,incing$ :hether the 4 risdiction of the Co rt is in,oked by ,irt e of a constit tional pro,ision, s ch as +rticle !2 or +rticle 226, or in,oked by reliance pon ordinary stat te, does not, in itself affect the content of the s bstanti,e right so ght to be asserted$ %he B estion of an alternate 4 risdictional basis is irrele,ant if the position regarding the legal proced re to enforce it is nclear$ :ith respect to the general scope and legal conseB ence of a Presidential #rder nder +rticle !"9'l*, the S preme Co rt, in 7akhan Singh, obser,ed that its legal effect was to constit te @a sort of moratori m or blanket ban< against the initiation, or contin ation, of any legal action which Ein s bstance so ght to enforce a > ndamental 0ight specified in the Presidential #rder$ #n this interpretation of +rticle !"9, the S preme Co rt nanimo sly< concl ded that a Presidential #rder co ld ne,er operate as a bar to proceedings in which e8ec ti,e action is attacked on gro nds which are not relatable to the specified > ndamental 0ights$ Speaking on behalf of si8 of the se,en

4 dges of the 6ench, C stice /a4endragadltar identified se,eral pleas which were not barred by the Presidential #rder$ %hese concerned the enforceability of rights other than those specified in the Presidential #rder infringement by the detaining a thority of mandatory pro,isions of the detention legislation. and mala fides$