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 under article 352 of the constitution on the 26

October, 1962.

The Defence of India Ordinance1962 (No. 4 of 1962) was also promulgated on that day.

An ordinance promulgtaed on November 3, 1962 suspended the rights of citizens to move to

any Court for the enforcement of the rights conferred by Art. 21 and 22 of the Constitution

for the period during which the proclamation of emergency issued on October 26, 1962

would be in force; under article 359(1) of the Indian Constitution.

On November 6, 1962, the rules framed by the Central Government were published.

The amendment of the Presidential order passed on 11 November, added Article 14 of the

constiution as well.

On December, 6, 1962, Rule 30 as originally framed was amended and Rule 30-A added.

On December 12, 1962 the Act was made. Section 48(1) of the Act provided for the repeal

of the Ordinances Nos. 4 and 6 of 1962. Section 48(2) provides that notwithstanding such

repeal, any rules made, anything done or any action taken under the aforesaid two

Ordinances shall be deemed to have been made, done or taken under this Act as if this Act

had commenced on October 26, 1962.

Hence, the Rules made under the Ordinance continued to be the Rules under the Act, and

the appellants had been detained under Rule 30(1)(b).

In totality there were 26 criminal appeals, nine against the decision of the Punjab High

Court, and 17 against the deecision of the Bombay High Court.

All the appellants were detenues who had been detained by the Punjab and the Maharashtra

State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the

Rules) made by the Central Government in exercise of the powers conferred on it by the

Defence of India Ordinance.

They had applied to the Punjab and the Bombay High Courts respectively under section 491

(1)(b) of the Code of Criminal Procedure and alleged that they had been improperly and

illegally detained.

Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act, 1962 (No. 51

of 1962) and Rule 30(1)(b) under which they have been detained were constitutionally

invalid, because they contravened their fundamental rights under Articles 14, 21 and 22(4),

(5) & (7) of the Constitution, and so, they claimed that an order should be passed in their

favour directing the respective State Governments to set them at liberty.

These petitions had been dismissed on the ground that the Presidential Order which has been

issued under Art. 359 of the Constitution creates a bar which precludes them from moving

the High Court under s. 491(1)(b) Cr. P. C.

The allahabad High Court had in similar case favoured the detenues, and it was this

difference of opinion with the Bombay and Punjab High Courts which lead to the

formulation of the Special Bench for the appeal.

Relevant Laws:

Article 358.While a Proclamation of Emergency 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 executive action which

the State would not 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

Proclamation ceases, to operate, except as respects things done or omitted to be done before the law

so ceases to have effect.

359. (1) Where a Proclamation of Emergency is in operation, the President may be order declare

that the right to move any Court for the enforcement of such of the rights conferred 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.

(2) Any order made as aforesaid may extend to the whole or any part of the territory of India."

Section 49l(l)(b) ofthe Code of Criminal Procedure (Act 5 of l898) provided:

Any High Court may, whenever it drinks fit, direct (b) that a person illegally or improperly

detained in public or private custody within such limits be set at liberty.1

Analysis

During the operation of the Emergency from 1962-1969, the Supreme Court confined its role only

1 The provision has been omitted in the Code of Criminal Procedure, I973.

to an examination of the propriety of instances of preventive detention in terms of the applicable

legislation. The Court did not endeavour to rule on the scope and operation of the constitutionally

guaranteed Fundamental Rights during an Emergency. Nor did it assert its powers of judicial review

in terms of the constitutionally entrenched provisions on the Supreme Court. Thus in all these cases

it has basically upheld the decisions of preventive detentions, and the case of Makhan Singh is an

example of such cases.

The main issues considered by the Court in the case were the following:

1. What was the true scope and effect of a Presidential Order issued under Article 359(l)?

2. Did the bar created by the Presidential Order operate in respect of applications for habeas

corpus made by detainees, not under Article 226 of the Constitution, but under section 491

ofthe Criminal Procedure Code?

The Court thus considered whether Article 359 of the Constitution was to be so construed as to

empower the President to suspend “all actions which a person may take under a statute or common

law, if he seeks thereby to protect his liberty against unlawful encroachment by the state or its

officers” Was the effect of the Presidential Order confined to the constitutional remedies guaranteed

by Articles 32 and 226, or would the Order also bar remedies which are conferred by ordinary

statutes, such as by section 49l of the Code of Criminal Procedure?

The Supreme Court conceded that the right to claim relief under the Code was a right which was

distinct and separate from that conferred by Articles 32 and 226 of the Constitution. It was stressed

that what was to be examined was not the technical procedural form in which the action was

initiated, not whether it was by writ petition under Article 32 or Article 226 of the Constitution, or

by proceedings sanctioned by ordinary statue, but rather that it was the “substance of the matter"

which was decisive. Therefore, proceedings taken under section 491 of the Criminal Procedure

Code would be on the same footing as writ petitions under the Constitution and would, with respect

to pleas based on rights conferred by the Articles specified in that Presidential Order, be equally

liable to attract the procedural bar."

The true test to determine whether a particular proceeding is barred is to examine the substance and

not the form. In the words of Justice Gajendragadkar:

“ In determining the question as to whether a particular proceeding falls within the mischief of the

Presidential Order or not, what has to be examined is not so much the form which the proceeding

has taken, or the words in which the relief is claimed, as the substance of the matter...before

granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the

question whether any of his specified fundamental rights have been contravened. If any relief

cannot be granted to the citizen without determining the question of the alleged infringement of the

said specified fundamental rights, that is a proceeding which falls under Art. 359(1) and would,

therefore, be hit by the Presidential Order issued under the said Article. The sweep of Art. 359(1)

and the Presidential Order issued under it is thus wide enough to include all claims made by citizens

in any court of competent jurisdiction when it is shown that the said claims cannot be effectively

adjudicated upon without examining the question as to whether the citizen is in substance, seeking

to enforce any of the said specified fundamental rights.

Justice Subba Rao dissented and argued that section 491 of the Code; though remedial in form,

postulates the existence of the substantive right. He identified that substantive right as a common

law principle that no person can be deprived of his or her liberty except in the manner prescribed by

law. Justice Subba Rao supported his conclusion as to the availability of a remedy under section 491

by classifying the High Court’s power under the Code as purely discretionary, and hence distinct

from the ‘right’ to move a court as guaranteed by Articles 32 and 226. Since he conceded to the

Legislature the power to take away this substantive right, Justice Subba Rao clearly did not derive

the procedural right in question from an implied constitutional rule of law or principle of legality. In

the absence of a principle of legality which transcends the specific Fundamental Rights conferred

by Part III of the Constitution, the opinion expressed by Justice Subba Rao is unconvincing.

Whether the jurisdiction of the Court is invoked by virtue of a constitutional provision, such as

Article 32 or Article 226, or invoked by reliance upon ordinary statute, does not, in itself affect the

content of the substantive right sought to be asserted. The question of an alternate jurisdictional

basis is irrelevant if the position regarding the legal procedure to enforce it is unclear.

With respect to the general scope and legal consequence of a Presidential Order under Article

359(l), the Supreme Court, in Makhan Singh, observed that its legal effect was to constitute

“a sort of moratorium or blanket ban" against the initiation, or continuation, of any legal action

which ‘in substance sought to enforce a Fundamental Right specified in the Presidential Order. On

this interpretation of Article 359, the Supreme Court unanimously" concluded that a Presidential

Order could never operate as a bar to proceedings in which executive action is attacked on grounds

which are not relatable to the specified Fundamental Rights. Speaking on behalf of six of the seven

judges of the Bench, Justice Gajendragadltar identified several pleas which were not barred by the

Presidential Order. These concerned the enforceability of rights other than those specified in the

Presidential Order infringement by the detaining authority of mandatory provisions of the detention

legislation; and mala fides.