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Makhan Singh Tarsikka vs State of Punjab (1964) AIR 381

The case related to illegal detention that occurred during the National Emergency of 1962 and questioned the scope of authority that the State has during the period of Emergency to infringe upon the Fundamental Rights of its citizens. 

Relevant Facts

A National Emergency was declared in India in 1962 as a result of the war being waged against China. The Defence of India Act and Defence of India Rules, 1962 were passed under which: –

  • A detention order for an indefinite period could be made by an officer not lower than rank of a District Magistrate.
  • There was no need to specify the grounds of detention to the detenu.
  • No opportunity was given to him to make representations before an authority for establishing his innocence. 
  • The power was delegated and review of the order was allowed to be done by the authority itself or any other specified authority.

The appellants were detained under 30(1) of Defence of India Rules. Petitions were filed in various high courts under section 491(1)(b) of the Code of Criminal Procedure, 1973 (1) for releasing the detinues. In the case of filed by a detenu, in 1963, the Allahabad High Court ordered release of the detinues. Different judgments were passed in support of as well as against the of detinues. 

Then a special constitutional bench was formed for hearing all the 26 criminal appeals in the matter. Mr. Setalvad appeared on the behalf of most of the appellants and Mr. C. K. Daphtary, the attorney general, on the opposite side.

Key Issues

1. What is the true scope and effect of the Presidential Order issued under Art. 359 (1)?
Sub issue: – what is the nature of the proceedings which are barred by the Presidential Order issued under Art. 359(1)?
2. Does the Presidential Order operate in respect of applications made by detenues under section 491(1) (b) of the CrPC?
3. Whether the impugned sections of the act and the relevant statutory rules are valid or not?


An application was made on behalf of the detenu that he was illegally detained. The State pleaded that the detention was not illegal because it was authorized under Rule 30(1)(b) of Defence of India Rules. The detenu then argued that the provisions were invalid because they infringed the fundamental rights guaranteed to the citizens under Articles 14, 21 and 22 of the constitution. Hence the major issue which came up was the validity of the relevant statutory provisions and rules. The detinues tried to prove that the impugned sections in the Act and the Rules were ultra vires making the detention an illegal and improper function.

It was held Article 19 was suspended during the entire time period of emergency. But the related legislative and executive actions could be challenged once the emergency ceases to operate.

Distinction between Article 358 and 359 

The following distinction was made out between the two Articles: 

  • Article 359 says that the president can issue orders for suspending such rights of citizens through which they can move the court for the enforcement of their rights. The article does not expressly give the power to the president to suspend all the fundamental rights. Whereas Article 358 automatically suspends the fundamental rights. 
  • Also, the order under Article 359 maybe for a specific period or for the entire emergency but the order issued under Article 358 lasts the entire tenure. The presidential order under Article 359(1) may imposes a blanket ban against the right to legal action subject to two important conditions. First, the legal action must seek relief on the ground of contravention of the claimant’s fundamental rights specified in the order. Secondly, the period during which this ban is to operate can be for the entire period of the Proclamation or for a shorter period. 
  • The suspension of Article 19 under Article 358 is applicable to the entire country. On the other hand, Art. 359(1) may be confined to any part of the territory of India.
  • The Presidential Order bars those cases where a relief has to be granted to the citizen for an alleged infringement of any specified fundamental right which has been suspended.

Right To Move The Court

After the enactment of Section 491 in the CrPC, the right to obtain an order of a habeas corpus became a statutory right in India. It is clear that the content of the detenu’s right to challenge the legality of his detention which was available to him under Section 491(1)(b), has been enlarged by the fundamental rights guaranteed to the citizens by the constitution, and so, whenever a detenu relies upon his fundamental rights even in support of his petition made under s. 491(1)(b) he is really enforcing the said rights and therefore, the proceedings are barred under the presidential order. The prohibition contained in the said Article and the presidential order would similarly apply to proceedings under 226(1) & Art. 32(1).

Delegation By Legislature

Section 10 of the Restriction and Detention Ordinance of 1944 had a specific provision which stated that Section 491 of the Code shall not be practiced. All the courts could not issue any order under the said section in respect of any order made under the presidential ordinance. There was excessive delegation of power while the challenged laws were being framed. The authorities had not complied with the mandatory provisions during detention.  The argument was that in conferring power to make rules, the legislature had abdicated its essential legislative functions in favour of the Central Government. But if the legislature laid down its legislative policy in crystal clear terms and makes appropriate rules of delegation, then such delegation is permissible.

Validity of Presidential Order

It was argued that the President is only authorised to issue an order of general application, but the present order was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962. But it was said that the power conferred was wide enough to make an order applicable to all the citizens and also in respect of any of the rights conferred by  Part III of the constitution. 

Colourable Legislation 

It was also argued from the appellant’s side that part of the act which contained the impugned sections was a colourable piece of legislation. Because the Preventive Detention Act, 1950 was already a statute, so it was not necessary to pass the impugned act. They argued that the sole object of the legislature was to deprive the citizens of their fundamental rights under Articles 21 and 22, it was a colourable piece of legislation. The state argued that Entry No. 9 in List I in the Seventh Schedule conferred jurisdiction to make laws for preventive detention for defence, foreign affairs, or the security of India and also in regard to persons under detention. There was no malafide intention of the legislature as it deemed the act to be necessarily passed. 

Major Precedents Cited

The King (At the Prosecution of Arthur Zadig) v. Halliday (2)

This foreign judgment related to the Defence of the Realm (Consolidation) Regulations Act, 1914 that was enacted in the UK during the time of World War I and suspended certain rights during national emergency. The case challenged this Act.  It was held that the legislature had taken an effective step. Such provisions preventing rights like habeus corpus had no relevance in dealing with an executive measure for protecting the state and preventing danger to the public. Hence the rules were valid and the rights were correctly suspended.

Liversidge v. Sir John Anderson (3)

The detenu argued that the fundamental rights were in question and that the legislation dealing such liberties must be interpreted supporting the subject and against the crown. But this contention was rejected.

Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura (4)

The petition was not entertained because it said that the ordinance, act and the rules were void for the reason that they contravened Articles 14, 21 & 22, which meant that the petitioner was enforcing his fundamental right. The court came up with the observation that such a petition was no more than “arguing in the circle”. If the presidential order prohibits from moving the Court for enforcing specified fundamental rights, then the citizens cannot urge that the act is void for contravening the said fundamental rights. The presidential order has been issued in order to preclude citizens from starting such cases and so, during the period of its operation, the challenge to the validity of the act cannot be entertained.

Bhatnagars and Co. Ltd. v. The Union of India (5)

The challenged act was held valid by the court because the legislative policy was broadly indicated in the preamble to the act, and detailed guidelines to the rule making authority were written. So, the contention that the act had delegated essential legislative function to the rule making authority was rejected.

Arguments made by the Appellants

  1. The fundamental rights must be given supreme importance. Such liberties have always been one of the pillars of democracy, the judges must uphold the true principles of liberty. 
  2. There can be no general principle for construing all the statutes. In all the scenarios, a reasonable interpretation must be relied upon. 
  3. Whenever the operation of Section 491 of CrPC was intended to be suspended, the legislature made a specific provision in that behalf. But in the present case there were no specific provisions.
  4. The only right of which a citizen can be deprived under Article 359(1) is the right to move the Supreme Court. So, a citizen has the right to ask for reliefs from the High Court under Article 226 because this right does not fall within the ambit of Article 359(1).
  5. The High Court has a discretionary power to issue the writs or orders under Article 226(1) and hence this is not a right of any citizen. So, it was argued that the proceedings under Article 226(1) do not come under the ambit of Article 359(1).
  6. The law of detention was passed by the legislature without any such powers given to it.
  7. The said order was invalid because it gave effect to the ordinance which was itself void.

Arguments made by the State

  1. A general approach for interpreting rules must be adopted. Article 359 allows the president to issue all such order for suspension of rights which are necessary at that time. So, no writs should be allowed.
  2. After understanding Article 226(1), it cannot be argued that a citizen does not have the right to move the High Court for invoking its jurisdiction under Article 226(1). It is a right conferred by the constitution.
  3. The Court cannot take suo motu action under Section 491(1)(b). Whereas a third person may apply, but he has to be authorized to act on behalf of the detenu.
  4. The detenus challenged the validity of the rules, so they are invoking their fundamental rights under the Constitution.


The court upheld the executive actions exercised under blanket powers conferred on it under the Defence of India Act and Defence of India Rules. The majority in the Supreme Court refused to grant the writ of habeas corpus to the appellants. The court upheld the executive action even though the state found itself unable to justify violations of Articles 14, 21 and 22 of the Constitution. 

Minority views Of Justice K Subba Rao

  • Parliament made the law in clear contravention of Article 22 so it is void as it does not define the period of detention, does not allow representation, does not disclose the ground of detention etc.
  • Article 226 has impliedly given the right to move the court as it clearly lays down the procedure. Under the constitution every citizen has a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts or any other court by any procedural writs.
  • The presidential order includes the right to move the court under article 226.
  • The presidential order is valid because the fact that only those, who have been deprived of their rights under the ordinance, cannot exercise their right to move the court does not confine the order to a class of persons.
  • The high courts can release detinues approaching under section 491.
  • He suggested three alternatives to the Parliament : make a valid law without infringing the fundamental rights excluding Art. 19 or amend s. 491 of the Code or both.


  • Section 491 was repealed.
  • The Supreme Court ruled that courts did not have the power to review orders of detention, even if they were ultra vires the legislation under which they had been imposed or on grounds of mala fides, since exercising such a review, and granting the writ of habeas corpus would amount to the enforcement of Article 21 which was suspended during the emergency.
  • Parliament can delegate law-making powers to the executive to a limited extent only.
  • The chief issue of presidential order issued under Article 359, laid down that the order had the effect of completely taking out the jurisdiction of the High Courts and the Supreme Court towards the protection of the Fundamental Rights that were mentioned in the order. Justice Subba Rao affirmed his minority view in holding that the order should be read restrictively, so that the jurisdiction under the Code of Criminal Procedure would survive even in the face of the presidential order. This approach of his testified, of course his concern for the individual liberty and the court’s duty to protect it.

(1) Power to issue directions of the nature of a habeas corpus.
(2) 1957 AC 260
(3) 1942 AC 206
(4) AIR 1964 SC 173
(5) (1957) SCR 701

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