Makhan Singh vs State Of Punjab on 2 September, 1952

Equivalent citations: 1964 AIR 381, 1964 SCR (4) 797

INRODUCTION:

PETITIONER:
MAKHAN SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB

DATE OF JUDGMENT:02/09/1952

BENCH:-GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
SUBBARAO, K.
WANCHOO, K.N.
HIDAYATULLAH, M.
GUPTA, K.C. DAS
SHAH, J.C.

The first proclamation of Emergency under Article 352 of the Constitution was made by the
President on 26th October 1962. This proclamation of Emergency was made on the ground of
external aggression in view of the Chinese Attack. The Presidential Order issued under Article
359 on 3rd November 1962 suspended enforcement, inter alia of Article 22 for purposes of the
Defense of India Act and the rules made there under. The Makhan Singh’s case was decided
during the period of this Emergency. This Emergency was revoked on 10th January 1968.
The second proclamation of Emergency under Article 352 was made by the President on 3rd
December 1971 again on the ground of external aggression when Pakistan launched an
undeclared war against India. This Emergency was in operation when the third proclamation was
made on the ground of internal disturbance.
The third proclamation of Emergency under Article 352 was made on 25th June 1975. A
Presidential Order was issued on 27th June 1975 under Article 359 suspending enforcement of
rights of any person inter alia under Article 22 generally, unlike the Presidential Orders issued in
1962 and 1971 which had done so only for purposes of the Defense of India Act and the rules
there under. The Habeas Corpus case was decided during the third Emergency. Both the second
and third proclamations of Emergency were revoked on 21st March 1977.
On October 26, 1962 the President of India having been satisfied that a grave national emergency
exists, whereby the security of India or any part of the territory thereof is threatened by Chinese
Aggression issued a proclamation declaring the Emergency under Article 352 of the
Constitution. President promulgated the Defense of India Ordinance on the same date. By S. 3 of
the Ordinance the Central Government was empowered to make rules as appear to be necessary
or expedient for securing the defense of India, civil defense, the public safety, the maintenance of
public order or the efficient conduct of military operations or for maintaining supplies and
services essential to the life of the community by notification in the official gazette. In exercise
of these powers, the Central Government promulgated the Defense of India rules, 1962 by
notification in the Official Gazette Extraordinary dated November 5, 1962.

FACTS:
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 Defense of India Ordinance1962 (No. 4 of 1962) was also promulgated on that day.
An ordinance promulgated 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
constitution 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 decision of the Bombay High Court.
All the appellant were detunes who had been detained by the Punjab and the Maharastra state
government under rule 30 (1)(b) of he defense in Indian rules made by the central government in
exercise of the power conferred on it by the dense of Indian 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 Defense 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 favor directing the
respective State Governments to set them at liberty.
These petitions has been dismissed on the ground that the presidential order which has been
issued under article 359 of 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 favored the detunes, 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.

Article 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) of the 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.

Analysis

During the operation of the Emergency from 1962-1969, the Supreme Court confined its role
only to an examination of the propriety of instances of preventive detention in terms of the
applicable legislation. The Court did not endeavor 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 detention , and
the case of Makhan Singh is an example of such cases.

ISSUES:

Two questions of considerable importance were raised in this case.

 1) What is the true scope and effect of the Presidential Order which had been issued under
Article 359 (1)?
2) Does the bar created by the Presidential Order issued under Article 359 (1) operate in
respect of applications made by the detunes under S. 491 (1)(b) of the Code ?

JUDGEMENT:

The Supreme Court observed that Article 359 does not purport expressly to suspend any of the
fundamental rights. It authorizes the President to issue an order declaring that the right to move
any court for the enforcement of such of the rights in Part III as may be mentioned in the order
and all proceedings in any court for the enforcement of the rights so mentioned shall remain
suspended for the period during which proclamation is in force or for such shorter period as may
be specified in the order. The rights are not expressly suspended, but the citizen is deprived of
his right to move any court for their enforcement. The Presidential Order cannot widen the
authority of the legislatures or the executive. Article 359 (1) and the Presidential Order issued
under it may constitute a sort of moratorium or a blanket ban against the institution or
continuance of any legal action subject to two important conditions. The first condition relates to
the character of the legal action and requires that the said action must seek to obtain a relief on
the ground that the claimant’s fundamental rights specified in the Presidential Order have been
contravened and the second condition relates to the period during which this ban is to operate.
The ban operates either for the period of the Proclamation or for such shorter period as may be
specified in the Order.

The Court further observed that in plain language the words “any court” in Article 359 (1) cannot
mean only the Supreme Court; they would necessarily take in all courts of competent
jurisdiction. So the right to move High Court under Article 226 falls within the mischief of
Article 359 (1). If a citizen moves any court to obtain a relief on the ground that his fundamental
rights specified in the Order have been contravened, that proceeding is barred. 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 and consider whether before
granting the relief claimed by the citizen, it would be necessary for the Court 243 to inquire 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 Article 359 (1) and
would, therefore, be hit by the Presidential Order issued under the said Article. The sweep of
Article 359 (1) and the Presidential Order issued under it is thus wide enough to include all
claims made by the 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.
Proceedings taken by a citizen either under Article 32(1) or under Article 226 (1) are hit by
Article 359 (1) and the Presidential Order issued under it. Where the proceedings are taken under
S. 491 (1) (b) of the Cr.P.C. 1898 on the ground that the detention of the petitioners under Rule
30 (1) (b) of D.I. Rules is invalid because the rule contravenes their fundamental right under
Articles 14, 21 and 22, the sole issue which falls to be determined between the parties relates to
the validity of the relevant statutory provisions and Rules. It cannot be said that the proceedings
taken under S. 491 (1) (b), Criminal P.C. are of such a distinctly separate character that they
cannot fall under Article 359 (1). The right to challenge the validity of a statute on the ground
that it contravenes the fundamental rights of the citizens has accrued to the citizens of this
country only after and as a result of the provisions of the Constitution itself, and so, there can be
no doubt that when in S. 491 (1) (b) proceedings the detunes seek to challenge the validity of the
impugned statutory provision and the Rule, they are invoking their fundamental rights under the
Constitution. The content of the detenu’s right to challenge the legality of his detention which
was available to him under S. 491 (1)(b) prior to the Constitution has been enlarged by the
fundamental rights guaranteed to the citizens by the Constitution and so, whenever a detune
relies upon his 244 fundamental rights even in support of his petition made under S. 491 (1)(b)
he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the
character of proceedings taken by the detune for enforcing these rights; that is why the argument
that Article 359 (1) and the Presidential Order issued under it do not apply to the proceedings
under S. 491 (1)(b) cannot be sustained. The prohibition contained in the said Article and the
Presidential Order will apply as much to proceedings under S. 491 (1) (b) as to those under
Article 226 (1) and Article 32 (1). In deciding the question, the substance of the matter must be
taken into account and no undue or exaggerated importance to the form of the proceedings has to
be attached. Thus the true legal position in substance, is that the clause “the right to move any
court” used in Article 359 (1) and the Presidential Order takes in all legal actions intended to be
filed, or filed in which the specified rights are sought to be enforced, and it covers all relevant
categories of jurisdictions of competent courts under which the said actions would otherwise
normally have been entertained and tried.

“ 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.

SOME OBSERVATIONS :

Makhan Singh’s case a 7 Judge-Bench decision is an authority for the proposition that in spite of
the Presidential Order under Article 359 (1) suspending right to move the Courts for enforcement
of fundamental rights under Articles 21 and 22, the detenu’s right to challenge his detention on
following grounds remains intact.

i) The detention order is in violation of the mandatory provisions of the preventive

detention law.
ii) The detention has been ordered mala fide.
iii) The operative provision of the law under which he was detained suffers from the vice
of excessive delegation. I am aware of the desirability of unanimity, if possible.
Unanimity obtained without sacrifice of conviction commends the decision to public
confidence. Unanimity which is merely formal and which is recorded at the expense
of strong conflicting views is not desirable in a court of last resort . . . A dissent in a
court of last resort, to use words of Chief Justice Hughes, is an appeal to the brooding
spirit of the law, to the intelligence of a future day, when a later decision may
 possibly correct the error into which the dissenting Judge believes the court to have
been betrayed. 256
iv) The law authorizing detention was colorable exercise of legislative power i.e. it was
passed by the legislature having no legislative competence.
v) The violation of fundamental rights other than those rights specified in the
Presidential Order.