This article provides the answer to the question that whether the writ petition under Art. 226 is maintainable at the time of emergency and discusses the issue of judicial scrutiny in Presidential Orders.
By: Roopal Dhoot, 2nd Year, Indian Law Society’s Law College, Pune.
- On June 25, 1975, the President in the exercise of his powers conferred by Clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbance.
- The Presidential order of June 27, 1975, further stated that the state shall be in addition to and not in derogation of any order made before the date of the aforesaid order under Clause (1) of Art. 359 of the Constitution.
- On June 27, 1975, in the exercise of powers conferred by Clause(1) of Art. 359,
the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21, and 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.
MISA Act, 1975
The President promulgated the amending Ordinances No. 1 and 7 of 1975 and replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act.
- Introducing a new section 16A, and giving a deemed effect to s. 7 of the act as one from June 25, 1975, while the rest having a deemed effect from June 29,1975. By the same act, a new section 18 was also inserted with effect from June 25, 1975.
- The respondent detained under s. 3(IA)(ii) read with s. 3(2) of the Maintenance of Internal Security Act (MISA).
- The Act was challenged in several High courts, the vires of the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for:
i) the setting aside of the said order and,
ii) for directing their release forthwith. In some cases, they challenged the validity of the thirty-eighth and thirty-ninth constitutional Amendment acts.
- When these petitions came up for hearing, the appellant raise the preliminary objection to the maintainability on the ground that in asking for release by the issuance of a writ of Habeas Corpus.
- The respondent was in substance claiming that they have been deprived of their Personal Liberty in violation of the procedure established by law, which plea was available to them under Art. 21 of the Constitution only
- In view of the Presidential order dated June 27 1975, suspending the right to move for enforcement of the right conferred by that article, the petition was liable to be dismissed at the threshold.
- Whether the writ petition under Art. 226 before a High Court is maintainable to enforce the right to personal liberty during an emergency declared under clause (1) of Art. 359 of the constitution?
- If such a petition is maintainable, what is the scope of Judicial Scrutiny in view of Presidential Order?
Article 21 says that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
Essential ingredients of Article 359(1) are as follows:
i) Proclamation of emergency must be in operation.
ii) The President may order not to move to any court for the enforcement of F.R under part iii of the constitution.
iii) By any such order, the proceedings for the enforcement of the rights shall remain suspended for the period during which the proclamation is in force.
- In the view of the Presidential order dated June 27, 1975, under clause (1) of the article 359, no person has locus standi to move writ petition under Article 226 of the constitution before a High Court for Habeas Corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the MISA Act 1971 on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male side.
In times of emergency, the executive safeguards the life of the nation and therefore its action either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered.
- An application invoking Habeas Corpus under sec. 491 CrPc cannot simultaneously be moved in the High Court.
- Article 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and a threat to Security of India by internal disturbance to another hand. Powers of President U/A 352(1) and 359(1) of our constitution are immune from challenge in courts even when the emergency is over.
- Sec 16A (9) of Maintenance of Internal Security Act is not unconstitutional on the ground that it constitute an encroachment on the writ jurisdiction of High Court under Act 226.
Queen v. Halliday Ex Parte Zadiq(1917) AC 210 referred to.
- Liberty is confined and controlled by law whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary. Liberty is itself the gift of the law and may by the law forfeited or abridged.
- The purpose and the object of Art. 359(1) is that the enforcement of any Fundamental Rights mentioned in the Presidential Order is barred or it remains suspended during the emergency. The scope of Art. 359(1) is not only to restrict the application of the article to the legislative field but also to the acts of the executive.
⁴Nupur Chowdhury, Asia Pacific Journal of Environmental Law 2014.