# ADDITIONAL DISTRICT MAGISTRATE, JABALPUR v. S. S. SHUKLA ETC. ETC - **Citation:** [1976] Supp. 1 S.C.R. 172 - **Court:** Supreme Court of India - **Decided:** 1976-04-28 - **Case number:** Criminal Appeal No. 279 B c D E F G H of 1975 - **Bench:** A. N. Ray, H. R. Khanna, M. H. Beg, P. N. Bhagwati, Y. v. CliANDRACHUD - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/additional-district-magistrate-jabalpur-v-s-s-shukla-etc-etc-7103 - **Pages:** 306 ## Headnote • Locus· standi to move habeas corpus petition under Article 226 of the > Constitution of lndia-Ef]ect of the l'residtntial Order dat for wrongful conflnemeTllScope of Section. I~. ' AODL. DIST. MAGISTMT!l v. S. S. SHUKLA 173 Basic structure tlwory-Constitution of India. Article 368--Emergency provi· sions themselves are to be regarded as the basic structure of the Constitution. A > · Objects of the Maintenance of Internal Sec11rity Act (Act 26 of 1971), 1971 and the Amending Acts 31 of 1975 and 14 of 1976 thereto. Presidential Order under Art, 359( I) and Martial Law under Articles 23 and 73 of the Constitution-Distinction-Constitution of India Art. 359(1), 359(1A), 53 and 73 read with Art. 355-Scope of. 1 ' Constitution of India, Article 226-Extent of the powers of inquiry by the B High Courts in a pet/lion for writ of habeas corpus when once a prinia facie valid detention order is shown to exist. ~ Rule of law, Concept of is inapplicable to enrergeney provis/.ons since the ~ emergency provisions themselves contain the rule of law for such situations. Separation of powers-Principles of-Preventive detention being placed exc[u. sively within the control of the Executive authorities of the State for the duration C of the emergency, does not violate any principle of separation of powers. - Basic structure theory is nothing niore t11an a mode of construction of docu· • 1nents of the Constitution. · lurisdiction of courts under Articles 136 and 226-Nature of. Constitution of India, Articles 34 and 359, effect of-Whether powers of the courts to issue lvrit of habeas corpus during the period of Martial Law are taken away. J Rule of construction-Decisio11s of the Supreme Court and the other high ituilcial authorities-Constitution of lluiia, Article 141 explained. #"" Rights under s. 8 of the }.falntenance of Internal Security ## Text _Characters 0–39,966 of 1,008,613. This is a partial read: ask again with offset=39966 for what follows._ A B c l> 172 ADDITIONAL DISTRICT MAGISTRATE, JABALPUR v. S. S. SHUKLA ETC. ETC. April 28, 1976 [A. N. RAY, C.1., H. R. KHANNA, M. H. BEG, P. N. BHAGWATI AND Y. v. CliANDRACHUD, JJ.] • Locus· standi to move habeas corpus petition under Article 226 of the > Constitution of lndia-Ef]ect of the l'residtntial Order dat for wrongful conflnemeTllScope of Section. I~. ' AODL. DIST. MAGISTMT!l v. S. S. SHUKLA 173 Basic structure tlwory-Constitution of India. Article 368--Emergency provi· sions themselves are to be regarded as the basic structure of the Constitution. A > · Objects of the Maintenance of Internal Sec11rity Act (Act 26 of 1971), 1971 and the Amending Acts 31 of 1975 and 14 of 1976 thereto. Presidential Order under Art, 359( I) and Martial Law under Articles 23 and 73 of the Constitution-Distinction-Constitution of India Art. 359(1), 359(1A), 53 and 73 read with Art. 355-Scope of. 1 ' Constitution of India, Article 226-Extent of the powers of inquiry by the B High Courts in a pet/lion for writ of habeas corpus when once a prinia facie valid detention order is shown to exist. ~ Rule of law, Concept of is inapplicable to enrergeney provis/.ons since the ~ emergency provisions themselves contain the rule of law for such situations. Separation of powers-Principles of-Preventive detention being placed exc[u. sively within the control of the Executive authorities of the State for the duration C of the emergency, does not violate any principle of separation of powers. - Basic structure theory is nothing niore t11an a mode of construction of docu· • 1nents of the Constitution. · lurisdiction of courts under Articles 136 and 226-Nature of. Constitution of India, Articles 34 and 359, effect of-Whether powers of the courts to issue lvrit of habeas corpus during the period of Martial Law are taken away. J Rule of construction-Decisio11s of the Supreme Court and the other high ituilcial authorities-Constitution of lluiia, Article 141 explained. #"" Rights under s. 8 of the }.falntenance of Internal Security Act (Act 26 of D • 1971 ), 1911-Nature of, vis--a-vis rights under Constitution of India, Article 22(5)-Rights under Article 22(5) do not bar the enforcement of right 11nder ~s. E _,_ Refl.ection, theory of is not applicable to s. 8 of tile Maintenance of Internal Security Act (Act 26 of 1971), 1971. Practice-Place of dissent in the court of last resort-Desirability of unanimity among J11dges-Constltution of India, Article 141. Fundamemal Rights-Object of guaranteed Fur1dammtal Rig/it. Natuwil justice, Rules of l9w, being on the sa1ne footing as Fundcunental Rights do not overide the express tenns of a statute. Ma.1ims: 1~ (i) 11Expressuni facit cessare tacit1u11 11-Applicability to Art. 21 of the Constitution. (ii) "Ut res magls va/eat quan1 pereat". (iii) "Salus populi est supren1e le". Words and phrases : (a) .. Purported to be made under s. 3" in s. 18 of the Mai11tc11ance of Internal Security Act (Act 26 of 1971), 1971. F G --- (b) "For any other purpose" in Art. 226 of tlze Constitution-n1eaning H of. (c) "Conferred by Part 111'' of tlic Co11Stit11tio11 in Art. 359(1)-Tntem. A B c D E F G H I 74 SUPREME COURT REPORTS (1976] SUPPLEMENTARY In exercise of the powers conferred by clause (i) of Art. 352 of the Constitution, ihe Pn:sident of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of lndia is threatened by external aggression and the Maintenance of Internal Security Act . ~ (Act 26 of 1971), 1971 was published on July 2. 1971, for eftcctivl!ly dealing with the emergency. On November 16, 1974, the President of India, in exercise of the powers conferred by clause (1) of Art. 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or \.Vhich may hereafter be made under s. 3(1)(c) of the Mainten~ ..,_ t ance of Internal Security Act, 1971 (as amended by Ordinance 11 ·of 1974) lor the enforcement of the rights conferred by Articles 14, 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court for the enforcement of any of the atoresaid rights Vi'ith ,. respect to all orders of detention made under the said section 3 ( 1) (c) shall · > remain suspended for a period of six months from the date of issue of the order or the period during which the proclamation of emergency issued under clause (1) of Art. 352 of the Constitution of India on December 3, 1971, is in .force, \Vhichever period expires earlier. The order stood extended to the whole of the territory of India. On June 20, 1975, the President of India, amended the above order by substituting 12 months for "6 months" in the order. On June 25, 1975, the President, in 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 disturbances. On June 27, 1975, in exercise of powers conferred by clause (1) of Art. 359, the President declared that the right of any person (including a foreigner) to 1nove 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 made under clause (1) of Art. 352' of the Constitution on December 3, 1971, and on June 25, 1975, are both in • force. The Presidential order of June 27, 1975, further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause ( 1) of 0Art. 359 of the Constitution. On June 29, 1975, by another order, the President made the Ordinance of June 27, 1975, applicable to the State of Jammu and Kashmir as well. On September 25, 1975, the last paragraph in the Presidential Order dated June 27, 1975, was omitted. The President promulgated the amending Ordinances No. 4 and 7 of 1975, now replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16i\, and giving a deemed effect to s. 7 of the Act as on from June 25, 1975, \\hile 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. By the Constitution (Thirty-eighth Amendment) Act, 1975, Articles 123, Zll, 239(b), 352, 356, 359 and 368 were amended, Clauses (4) and (5) were added in Art. 352 of the Constitution. Broadly stated, the Thirty-eighth Constitution (Amendment) Act renders the satisfaction of the President or the ~· Governor in the relevant Articles final and conclusive and to be beyond any • question in any court on any ground. The power conferred on the President by Art. 352 shall include the power to issue different proclamations on different grounds, being war or external aggression or internal disturbances or imminent danger of war or external aggression or inter~al disturbance w~et~er or ~ot th~re is a proclamation al ready issued by the President. By Constitution Thirty-eighth Amendment ~A.ct 197 5, a new clause (1A1 was also added after clause (1) of Article 359. The Constitution Thirty-ninth Amendment Act was published on August 10, 1975 amending Articles 71, 329 and 329(A) and added Entries after Entry 86 in th'e 9th Schedule and the Maintenance of Internal Security Act (Act 26 of 1971), 1971 as item 92 in the said Schedule. - - • AbbL. iJISt. MAGISTRATE V. S. S. SHUKLA 1 75 On October 17, 1975, an Ordinance 16 of 1975 was issued making further amendments in s. 16A of the 1'1aintenance of Internal Security Act introducing ~ub-clauses (8) and (9) to s. 16A. On November 16, 1975, Ordinan.;e 22 of 1975 ~Was issued making certain amendments in the Maintenance of Internal Security Act inserting also sub-section 2A in s. 16A. AH the an1endments made by the Ordinance were given retrospective effect for the purpose of validating all acts done previously. The said Ordinances were published as the Maintenance of Internal Security (Amendment) Act 1976 (Act 14 of 1976) on January 25, 1976. I ' The respondents rletained under s. 3 {ia) (ii) read with s. 3 (2) of the A1aintenance of Internal Security Act (Act 26 of 1971) as amended by the 1'1aintenance of Internal Security Act (Amendment Act 39 of 1975), 1975 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 (a) the setting aside of the said order and (b) for directing their release forthwith. In some cases, they challenged the validity of the Thirty-eighth and fhirty-ninth Constitution Amendment Acts. • l When these petitions came up for hearing, the appellants raised the preliminary objection to the maintainability on the ground that in asking for relea~t: by the issuance of a writ of habeas corpus, the respondents were, in :n!b'iranc;.:, 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 and 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 petitions were liable to be dismissed at the threshold. While the High Courts of Andhra Pradesh, Kenda and 11adras have upheld Lhe preliminary objection, this contention did not find favour with the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi. Karnataka, l\.1adhya Pradesh, Punjab and Haryana respectively. These High Courts broadly took the view that (a) despite the Presidential Order. it is open to the detenus to challenge their detention on the ground that it is ultra vines, as for example, by showing that the order, on the face of it, is passed by an authority uot • empowered to pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of thei conditions prescribed in that behalf by the Act under which the order is passed, or that the order is not in strict conformity with the provisions of the Act. Some of these High Courts have further held that the detenus can attack the order of tletention on the ground that it is 1nala fide, as for example, by showing that the detaining authority did not apply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations or that the authority was actuated by improper motives. The Nagpur Bench of the Bombay High Court read down s. 16A(9) of the Maintenance of Internal Security Act, 1971, implying an exception in favour of disclosure to the Court. The High Court did not decide about the validity of the Thirty-eighth and 'fhirty-ninth Constitution Amendment Acts . -,. .... _ Accepting the States' appeals, some by certificates granted by the 1--figh Courts and some by special leave, the Court by majority (Khanna, J. dissenting), ,. HELD: (Per majority A. N. Ray, C.l., M. H. Beg. Y. V. Chandrachud and P. N. Bhagwati, JJ.) · (1) In view of the Presidential Order dated June 27, 1975, under clause (1) of Art. 359. no person has any locus standi to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal or is based on extraneous considerations. [477 E-F] -"'/. (2) Section 16A(9) of the ~1ainte_nancc of Jnternal Security A.ct, 1971 is constitutionally valid. [477 F] (3) Section 18 of the Maintenance of Internal Security Act, 1971 is not invalid. [240 A-D, 342 F-G, 414 DJ A B c D E F G H A B c D E G H l 76 SUPREME C:OURT REPORTS [1976] SUPPLEMENTARY ( 4) Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State. [246 BJ Per A. "fo,,r. Ray, CJ. In view of the Presidential Order dated June 27, 1975, under clause (1) of Art. 359, no person has locus standi to move writ petitions under Art 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 Maintenance of Internal Security 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 fodc. [245 H, 246 A] Article 21 is the sole repository of rights to life and personal liberty against a State. Any claim to a \\Tit of habeas corpus is enforcement of Ali. 21 and is, therefore, barred by the Presidential Order. [246 B] Giri11dra f\'ath Banerice v. Birendra Nath Lal, ILR 54 Cal. 727; Kittg Emperor v. Shib Nath Ba11erjee 1972 Indian Appeals 241 and Mak/ran Singh v. State of Pu11jab [1964] (4) SCR 797, referred to. Scope of judicial rcvieH' in c111crge11cy. In ·times of emergency the executive safeguards the life of the nation aild. therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of •.he fa<:t that comiderations of security forbid pooof of the evidence upon \Vhich the detention \l.'3S ordered. [219 B-E] Livcrsidge v. Sir John Anderson [1942] ,'\C 206; Greene v. Secretary of State for Home Affairs [1942] AC 284; Mohan Chaudhary v. Chief Commissioner, Union 1 crritory of Tripura [1964] 3 SCR 442 and Makhan Singh v. State of Pu11jab [1964] 4 SCR 797, followed. Queen '" Halliday Ex l'arte Zadiq [1917] AC 210, referred. to. Liberty is confined and controlled by la\v, whether comn1on law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Governinent \t,.·hich has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limiled to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged. [222 D, G] Zamora's case [1916] 2 AC 107 and Livasidge v. Sir John Anderson [1942] AC 206, referred to. . The vital distinction bcl\\·cen Arts. 358 and 359 is that Art. 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening Art. 19 during the operation of a Proclamation of emergency and the Exeeutive can take action \\•hich the E-xecutive is competent to take tmder such laws. Article 358 does not suspend any Fundamental Right. Whilo a proclamation of emergency is in operation, the Presidential Order under Art. 359( 1) can suspend the enforcement of any or all Fundamental Right~. Article 359( l) also suspends 3.ny pending proceedings for t11e enforcement of such Fundan1ent..'l.l Right or Rights. Another important distinction between the two Articles is that Art. 358 provi_des· for indemnity; whereas Article 359(1) does not; Article 359(!A) is on the same lines as Art. 358, but Article 359(1Al includes all Fundamental Rights which may be mentioned in a Presidential Order and is. therefore, much wider than Art. 358 \vhich includes Art. 19 only. [223 E·Gl The purpose and object of Art. 359(1) is that the enforcement of any Fundamental Right mentioned in the Prcsi - • >- - . \<- - ,. •. _,, ADDL. DIST. MAGISTRATE V. S. S. SHUKLA 177 to move this Court only is barred but also the right to move any High Court. A The bar created by Art. 359( I) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential Order whether by way of an application under Art. 32 or by way of application under Art. 226. An application invoking habeas corpus under s. 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court. {223 H, 224 D, 229 Fl Shri Mohan Chaudhary v. Chief Co1nn1issioner, Union Territory of Tripura [1964] 3 SCR 442; Makhan Singh v. State of Punjab [1964] 4 SCR 797 and B Dr. Ram Manohar Lohia v. State of Bihar & Ors. [1966] 1 SCR 709, applied. The argument that jurisdiction and powers of this Court under Art. 32 and •DI the High Courts under Art. 226 are virtually abolished by the Presidential Order without any amendment of the Constitution is incorrect. No amendn1ent to the Constitution is necessary because no jurisdiction and power either of this Court or of the .High Court is taken away. When a Presidential Order takes away the locus standi of the detenu to move any court for the enforcen1ent of Fundamental Rights for the time being, the jurisdiction and powers of tills C Court and of the High Courts remain unaltered. [224 E-F] Article 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi. If courts will in spite of the Presidential Order entertain the applications and allow the detenu to enforce, to start or to continue proceedings or enforce Fundamental Rights, Article 359(1) will be nullified and rendered otiose. [224 F, 227 C-D] Unlike the 1962 Presidential Order, in the 1975 Order, the suspension is not D hed~ed with any condition of enforcement of any right under Articles 21 and 22. The Presidential Order is, therefore, a bar at the threshold. [228 D-E] Makhan Singh v. State of Punjab [1964] 4 SCR 797 and State of Maharashtra v. Prabhakar Pandurang SanRzgiri & Anr. [1966] 1 SCR 702, distinguished. There are no natural rightSi. Fundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights. [229 C-DJ H. H. Kesvananda Bharti Sripadagalavaru v. State of Kera/a [1973] Supp. 1 SCR 702, followed. Law means law enacted by the State. Law means positive State made law. The phrase "Pr~edure established by law" in Art. 21 includes substantive and procedural law. A law providing for the procedure depriving a person ef liberty must be a law made by statute. [229 D-E] A. K. Gopalan v. State of Madras [1950] SCR 88; P. D. Shamdasani & Ors. v. Central Bank of lndia Ltd. [1952] SCR 391; Smt. Vidya Verma through next friend R. V. S. Mani v. Dr. Shiv Narain Verma [1955] 2 SCR 983, applied. ·There is no difference between the expression "except according to procedure esta'hlished by law" in Art. 21 and the expression "save by the authority of law" in Art. 31 ( 1) or the expression "except by authority of law" in Art. 265. E F It is incorrect to suggest that when Art. 21 was enacted, the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the con5titutional mandate tha• personal liberty could not be taken except G according to law. [232 B-D] Part III of our Constitution confers Fundamental Rights in positive as well as negative language. A Fundamental Right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasize the immunity from State action as a Funda~ mental Right. Fundamental Rights have the texture of Basic Human Rights. [229 G, 230 A-Bl State of Biliar v. Malwraja Dhiraia Sir Kameshwar Singh of Darhhanqa & H Ors. (1952] SCR 889 at 988, 989; A. K. Gopalan v. State of Madras [1950] SCR 88; Rustom Cavasjee Cooper v. Union of India [1970] 3 SCR 578, 571 and 576 to 578: Shambliu Nath Sarkar v. The State of West Bengal & Ors. [19741 14-833SupCl/76 A B c D E F G 178 SUPREME COURT REPORTS [1976] SUPPLEMENTARY 1 SCR; Haradahan Saha & Anr. v. State of West Bengal [1975] l 3CR 778 and Khudiram Das -v. State of West Bengal & Ors. [1975] 2 SCR 832, referred to. Article 21 is our Rule of Law regarding life and liberty. No other Rule of Law can have separate existence as a distinct right. The negative language of Fundamental Right incorporated in Part III imposes limitations on the l'OWer of the State and declares the corresponding guarantees of the individual to that Fundamental Right. Limitation and guarantee are complementary. The limitation of State action embodied in a Fundamental Right couched in a negative forrn is the measure of the protection of the individual. [230 C-D] Rusto1n Cavasji Cooper v. Uniofl of India [1970] 3 SCR 568, applied. . ' • Personal liberty in Article 21 includes all varieties of rights which go to ~ make persqnal liberty other than those in Art. 19(1) (d). [230-D] .Kharak Singh v. State of U.P. and Ors. [1964] l SCR 332 and Rustom Ca\'asiee Cooper v. Union of India [1970] 3 SCR 530, referred to. If any right existed before the commencement of the Constitution and the sa1ne right with its content is conferred by Part Ill as a Fundamental Right the source of that right is in Part III and not in any pre·existing right. Such pre·constitutional rights have been elevated in Part Ill as Fundamental Rights. If there is a pre·constitution right which is expressly embodied as a Fundamental Right under our Constitution, the common law right has no separate existence under our Constitution. If there be any right other than and more extensive than the Fundamental Right in Part Ill, such right may continue to exist under Art. 372. f230 F-Hl Dhirubha Devi Singh Gohil v. State of Bombay [1955] l SCR 691-693, ref1~rred to. B. Shankara Rao Badami and Ors. v. State of Mysore and Anr. [1969] 3 SCR l @ ll-13, applied. Apart from the remedy under the common law of torts, by way of suit for false imprisonment and claim for damages, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Con· stitution. Even this remedy, after the amendment of s. 491 of the Cede of Criminal Procedure became a statutory right in the nature of a habeas corpus. The provisions of s. 491 of the Criminal Procedure Code have been repealed by Act IT of 1974 as being superfluous in view of Art. 226. [231 C-D] Waghela .Rajsanji v. Sheik Masludin and Ors. 14 IA. 89 @ 96; Sal/sh Chandra Chakravarti v. Ram Dayal De I.L.R. 48 Cal. 388 @ 407-10, 425-426; Baboo S/o Thakur Dhobi v. Mst. Subanshi w/o Mangal Dhobi AlR 1942 Nagpur 99; Makhan Singh v. State of Punjab [1964] 4 SCR 797; District Magistrote Trivandrum v. K. C. Mammen Mappillai I.LR. [1939] Mad. 708; Matthen v . . District Magistrate, Trivandrum L.R. 66 I.A. 222; Girindranath Banerjee v . . Virendranath Pal ILR 54 Cal. 727 and King Emperor v. Sibnath Banerjee 72 I.A. 241, referred to. There was no statutory right to enforce the right to personal libertYofue'r than that in s. 491 of the Criminal Procedufe Code before the commencement of the Constitution which could be carried over after its commencement under Art. 372. Law in Art. 21 will include all post-constitutional statute. law including Maintenance of Internal Security Act, 1971 and by virtue of Art. 372 all pre-constitutional statute law, including the I.P.C. and the Cr.P.C. [231 F-G] .. H The present appeals do not touch any aspect of Art. 20. Article 20 is a 'J'· -4 constitutional mandate to the judiciary and Art. 21 is a constitutional mandate to the Executive. The expression "no person shall be prosecuted for the same effence more than once" in Art. lO would apply only to the E.x:ecutive. It is l • • - ADDL. DIST. MAGISTRATE v. S. S. SHUKLA 17 9 incorrect to say that "State" in Art. 12 will also include the Judiciaiy and A Art. 20 is enforceable against the Judiciary in respect of illegal orders. [232 E-F, G-HJ Makhan Singh v. State of Punjab [1964J 4 SCR 797 and Narayan Singh v. State of Delhi and Ors. [1953J SCR 652, not applicable. Articles 256, 265 and 361 have no relevance to displace the proposition that ,Art. 21 is the repository of rights to life and liberty. Nor does an appeal in B a criminal proceedings have anything to do with Art. 21. [233 C-DJ Garikapatti T'ccrayya v. N. Subbiah Choudhury [1957] SCR 488 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Rafn Tahal Ramnand and ors . [1973J 1 SCR 185, referred to. The right arising from a decree is not a Fundamental Right and, therefore, will not be prima facie covered by a Presidential Order under An. 359(1). · ~33m Fundamental Rights including the right to personal liberty are conferred by the Constitution. Any pre-constitution rights which are included in Art. 21 do not after the Constitution remain in existence which can be enforced, if Art. 21 is :suspended. If it be assumed that there was any pre-constitutional right to personal liberty included in Art. 21 which continued to exist as a distinct and separate right then Art. 359(1) will be an exercise in futility. [234 A-BJ Makhan Singh v. State of Punjab [1964J SCR 797 explained. The theory of eclipse is untenable. The theory of eclipse refers to pre11:onstitutional ·1aws which were inconsistent \vith Fundamental Rights. By reason of Art. 13 (I) such laws did not became void but became devoid of Jegal force. Such laws became eclipsed for the time being. The theory of .,.. eclipse has no relevance to the suspension of the enforcement of Fundamental Rights under .Art. 3 59 ( 1 ) . The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with Art. 13 (1 ). [234 B-DJ c D .P. D. Shamdasani v. Central Bank of India Ltd. [1952J SCR 391 and E Snit. Vidya Verma through next friend R. V. S. Mani v. Dr. Shiv Narain Verrna [1955J 2 SCR 983, reiterated. The Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure, therefore, cannot be challenged because Art. 21 and 22 cannot be enforced. The suggestion that the power of the Executive is widened is equally untenable .. ~ [235 E-FJ F The fact that s. 491 of the Criminal Procedure Ccxle has been abolished in he new Code est~blishes that the pre-existing right was embodiei as a Fundamental Right in the Constitution. The right to personal liberty became identified with Fundamental Right to personal liberty under Art. 21. [236 Al The Presidential Orders does not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainity of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature. [236 B-CJ It is not correct to argue that if pre-existing law is merged in Art. 21, there \vill be conflict in the Article 372. The expression "law in force" in Art. 372 cannot include laws which are incorporated in the Constitution, viz. in Part ITT. The expression "law" in Articles 19(1) and 21 takes in the statute law. [235 BJ The Presidential Order under Art. 359(1) is not a law. The order does G not repeal any law either. The contention that permanent law cannot be H repealed by temporary law is misplaced. [235 CJ The tntire concept in Art. 21 _is against Executive action. There is no ques~ tion of infringement of Fundamental Right, under An. 21 where the detention A B c D E F G H 180 SUPREME COURT REPORTS [1976) SUPPLEMENTARY complained of is by a private person and not by a State or under the authority or orders of a State. [235 DJ . The Executive cannot detain a person otherwise than under valid legislation. The suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law. [237 A-F] Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab [1955J 2 SCR 225; M.P. State v. Bharat Singh [1967J 2 SCR 454; Dy. Collector v. Ibrahim & Co. [1970] 3 SCR 498; BennrOvisoins analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence. It is in the nature of an explanation to ss. 123 and 162 of the Evidence Act. Section 16A(9) is a rule of evidence. When the detaining authority is bound by s. 16A(9) and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority. [242 G-HJ A B Section 16A(9) cannot be read implying an exception in form of disclosu!"e to the Court. Such disclosure to the Court alone and not to the detenu will intrcxluce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their C respective cases. The View of the detaining authority is not to be substituted by the view of the court. [243 A-CJ State of Bombay v. Atma Ram Sridhar Vaidya [1951) SCR 167; Slziban Lal Saksena v. State of Uttar Pradesh and Ors. [1954J SCR 418; Rameshwar Shaw v . . District Magistrate Burdwan and Anr. [1964] 4 SCR 921; Jaichand Lal v. TV. Bengal [1966] Supp. SCR 464 and Dr. Ran1 Manohar Lohia v. State of Bihar [l966J I SCR 709, referred to. The theory of good return mentioned in the English decisions is based on Hie language of Habeas Corpus Act and the Rules of the Supreme Court of England. The practice of our Court is different. [243 C-DJ M. M. Damnoo v. J. K. State [1972] 2 SCR 1014 and A. K. Gopalan v. "' State of Madras [19521 SCR 391, distinguished . D Tt is .not competent for any court to go into questions of malafiJ.es of the order of detention or ultra vires character of the order of detention or that E the order was not passed on the satisfaction of the detaining authority. Section l 6A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide. The reason why s. 16A has been enacted is to provide for periodical review by Government and that is the' safeguard against any unjust or arbitrary exercise of power. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge. [243 G·H. 244 A, 245 BJ In view of the inability of the court to grant any relief on the basis \Vhether order of detention is the result of malice or ill will, the detention of malafides is not only ineffective but also untenable. [244 DE] La1vrence /oachin1 Joseph D's Souza v. The State of Bombay [1956] SCR ~ 382 @ 392, 393; Smith v. East Elloc Rural District Council & Ors. [1966] AC 136 at 776 and Dr. Ran1 Manohar l..ohia v. State of Bihar and Ors. [19661 1 SCR 709, referred to. A decisio!1 on .a point no~ .necessary for the purpose or which does not fall to be determined 1n that dec1s1on becomes obiter dictum. [227 F] Maharaia Dhira,ia .'Madhav Rao Jivaji Rao Scindia Bahadur & Ors. v. Union ~t India [1971J 3 SCR 9 at pages 97 to 98 and 193 to 194, referred to. Per M. H. Beg, !. F • G A prima facie valid detention order, that is to say, one duly authenticated H and pa~sed by an. <;>fficer authorised to .mftke it r~cording a purported satisfaction ~o detain. the {'et1ttoner under the Maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a • A B c D E F • G H 182 SUPREME COURT REPORTS [1976] SUPPLEMENTARY complete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala tides of any kind or of non-compliance \Vith any provision of the Maintenance of Internal Security Act in habeas corpus proceedings. [371 G-H, 372 A] The fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of a11 other laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function. though \vider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is nlso suspended during the current e.mergenc.y. is especially constricted by the elaborate provisions of Articles 21 and 22, which deal \Vith personal liberty and preventive detention. The wider the svveep ot the yrovisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement. Suspension does not and cannot mean retention under a disguise. (312 F-Hl Marbury .v . . Madison [1803] 1 Cranch 137; A. K. Gopalan v. State of Madras [1950] SCR 88 @ p. 109, referred. The only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself. The Constitution is an embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law lying behind it which can be recognised by courts. The spirit of law or the Rule of Law cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution. It has to be found always within and operating in harmony with nnd never outside or in conflict with what our Constitution enjoins. [313 A, D-E] The most important object of making certain basic rights fundamental by "(. • the Constitution is to make them enforceable against the State and its agencies ;.. through the Courts. (329 Fl Under our constitutional jurisprudence courts cannot, during a constitutionally enjoined period of suspension of tho enforceability of fundamental rights through courts, enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution, [314 C-D] The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfilment of two conditions : firstly, its recognition by or under the Constitution as a right; and, secondly, possession of the power of its enforcement by the judicial organs. Article 226 of the Constitution is not meant for futile and unenforceable declarations of right. TI1e whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation.