Case Note & Summary
The case arose from the proclamation of emergency by the President of India on 26 October 1962 due to Chinese aggression. On the same day, the President promulgated the Defence of India Ordinance, 1962, under which the Central Government framed the Defence of India Rules, 1962. On 3 November 1962, the President issued an order under Article 359(1) of the Constitution suspending the right of any person to move any court for enforcement of rights conferred by Articles 21 and 22 during the emergency if such person had been deprived of those rights under the Defence of India Ordinance or rules. Acting under Rule 30 of the Defence of India Rules, the Chief Commissioner of Tripura passed an order dated 20 November 1962 detaining the petitioner, Sree Mohan Chowdhury, in Agartala Central Jail with a view to preventing him from acting prejudicially to the defence of India, public safety, and maintenance of public order. The petitioner was later transferred to Hazaribagh Central Jail. While in detention, he filed a writ petition under Article 32 of the Constitution seeking a writ of habeas corpus. His petition was initially withheld by the Tripura administration, which led to contempt proceedings and an unconditional apology by the Judicial Secretary. The petition was subsequently listed before a Constitution Bench. The respondent raised a preliminary objection that the petition was not maintainable because the Presidential Order dated 3 November 1962 had suspended the enforcement of rights under Articles 21 and 22, thereby barring the petitioner from moving the Supreme Court under Article 32. The petitioner, through counsel, argued that the right to move the Supreme Court under Article 32 is a guaranteed fundamental right and cannot be suspended under Article 359; he contended that Article 359 only suspends the enforcement of specified rights, not the remedy. He further argued that the Presidential Order was ineffective because the Defence of India Ordinance had been repealed by the Defence of India Act, 1962, and that the Ordinance was invalid for want of legislative competence. The Supreme Court rejected these contentions. It held that Article 359(1) expressly empowers the President to suspend the right to move any court for enforcement of specified fundamental rights, and the order in question validly suspended the right to move the Supreme Court for enforcement of rights under Articles 21 and 22. While the Court's inherent power to issue a writ of habeas corpus was not affected, the petitioner's right to invoke that power was suspended, and therefore he could not challenge the vires of the Ordinance or Rules. On the question of repeal, the Court applied Section 48 of the Defence of India Act, 1962, which provided that any rules made, anything done, or any action taken under the repealed Ordinance would be deemed to have been made, done, or taken under the Act. Additionally, Section 8 of the General Clauses Act, 1897, required references to the repealed Ordinance in the Presidential Order to be read as references to the re-enacting Act. The Court observed that the word 'instrument' in Section 8 included the Presidential Order. Consequently, the Presidential Order remained in force and the petition was dismissed as not maintainable. The Court did not go into the merits of the detention order.
Headnote
A) Constitutional Law - Emergency Provisions - Article 359(1) Suspension of Right to Move Court - Constitution of India, 1950, Articles 21, 22, 32, 352, 359 - The President issued an order under Article 359(1) suspending the right of any person to move any court for enforcement of rights under Articles 21 and 22 during the proclamation of emergency if deprived under the Defence of India Ordinance or rules. The Supreme Court held that this order validly suspended the petitioner's right to move the Supreme Court under Article 32 for habeas corpus, although the Court's power to issue the writ remained untouched. Held that the petition was not maintainable and the petitioner could not challenge the vires of the Ordinance or Rules due to the suspension. (Paras 1-6) B) Constitutional Law - Article 32 Remedy - Scope of Suspension - Constitution of India, 1950, Article 32 - The petitioner contended that the right to move the Supreme Court under Article 32 is a guaranteed right that cannot be suspended under Article 359. The Court clarified that Article 359(1) expressly empowers the President to suspend the right to move any court for enforcement of the specified rights, and this includes the right to move the Supreme Court under Article 32 for those rights. Held that Article 32 remedy is not absolutely immune from suspension during an emergency in respect of the suspended rights. (Paras 7-9) C) Statutory Interpretation - Repeal and Saving of Orders - General Clauses Act, 1897, Section 8; Defence of India Act, 1962, Section 48 - The repeal of the Defence of India Ordinance, 1962 by the Defence of India Act, 1962 did not render the Presidential Order ineffective. By virtue of Section 48 of the Act, any rules made or anything done or action taken under the Ordinance were deemed to have been made, done or taken under the Act. Moreover, under Section 8 of the General Clauses Act, references to the repealed Ordinance in the Presidential Order were to be read as references to the re-enacting Act. Held that the order remained in force and operative. (Paras 10-13) D) Preventive Detention - Defence of India Rules - Rule 30 - Defence of India Ordinance, 1962, Section 3; Defence of India Rules, 1962, Rule 30 - The Chief Commissioner of Tripura detained the petitioner under Rule 30 of the Defence of India Rules. The petitioner's challenge was barred by the suspension of his right to move the court under Articles 21 and 22. Held that since the petition was not maintainable, no adjudication on the merits of the detention order was made. (Paras 14-16)
Issue of Consideration
Whether the habeas corpus petition under Article 32 was maintainable after the Presidential Order dated 3 November 1962 under Article 359(1) suspended the enforcement of rights conferred by Articles 21 and 22; whether the repeal of the Defence of India Ordinance, 1962 by the Defence of India Act, 1962 rendered the Presidential Order ineffective; whether the petitioner could challenge the vires of the Ordinance and Rules despite the suspension.
Final Decision
Petition dismissed as not maintainable. The right of the petitioner to move the Supreme Court for a writ of habeas corpus was suspended by the Presidential Order under Article 359(1); the Court's power to issue writ was not affected but no relief could be granted. The Presidential Order remained operative despite repeal of the Ordinance by virtue of Section 48 of the Defence of India Act, 1962 and Section 8 of the General Clauses Act, 1897.
Law Points
- Article 359(1) empowers the President to suspend the right to move any court for enforcement of specified fundamental rights during an emergency
- suspension extends to the right to move the Supreme Court under Article 32 for suspended rights
- the Court's power to issue a writ of habeas corpus remains untouched but the citizen's right to invoke it is suspended
- a person whose rights under Articles 21 and 22 are suspended cannot challenge the vires of the Ordinance or Rules
- repeal of an Ordinance with a saving clause and Section 8 of the General Clauses Act preserves orders and references
- the word 'instrument' in Section 8 includes a Presidential Order
