# AtM1.n Chwuiltury v. Chitf Commissioner

- **Citation:** [1964] 3 S.C.R. 442
- **Court:** Supreme Court of India
- **Decided:** 1962-11-03
- **Bench:** B. P. SINHA c. J, K. Subba Rao, J. c. SHAH, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/atm1-n-chwuiltury-v-chitf-commissioner-2906
- **Pages:** 15

## Headnote

Fu'l!damtntal
Right8-Proclamation
of E-rgencyDetention-Right to move Supreme Oourt-Susptmion ofOomtitution of India, Aris. 21, 22 and 32-Preaidenl'a Order
·dt. November 3, 1962-General Clauses Act, 1897 (111 of 1897),
•· 8-Defence of India Ordinance, 1962 (4 of .1962)-Defenet of
India Act! 1962 (lil of 1962), s. 48.
On Or.tober 26, 1962, the President issued a proclamation
of Emergency which was later approved by both houses of
Parliament, On the same day he promulgated the Defence of
India' Ordinance, 1962, and under s. 3 thereof the Central
Government promulgated the Defence of India Rules, 1962.
On November 3, 1962, the President issued an Order under Art;
359 (I) of the Constitution suspendiag the right of any person
to move any Court for the enforcement of the rights conferred
by Arts. 21 and 22 during the proclamation of emergency "if
such person has been deprived of any such rights under the
Defence of India Ordinance,1962 or imy rule made thereunder".
On November 20, 1962, the respondent made an order under
r. 30 of the Defence of India Rules for the detention of the
petmoner.
The petitioner moved the Supreme Court under
Art. 32, challenging his detention. The respondent contended
that the petition was not maintainable. The petitioner conten-
'ded that the right to move the Supreme Court under Art. 32
being a guaranteed right could not be, and was not, suspended
and that the President's Order suspending the right was inefl'cctive as it was dependent on the continued existence of the
Ordinance but the Ordinance hacl been repealed by the Defence
oflndia Act, 1962.
Hild that the petition was not maintainable. Though
the power of the Supreme Court to issue a writ in the nature
of habeaa corpus was not touched, the right of the petitioner to
.move the court for such a writ was suspended by the President's
3 S.C:.R.
SUPRBNIE cotiR T REPOR. ts
443
Order. The Order did not suspend all the rights of a citizen to
move the Supreme Court but only the rights under Arts. 21
and 22.
Since his right to
the Court was suspended he
was not entitled to challenge the vircs of the Act and of the
Rules.
The repeal of the Ordinance by the Defence of India
Act, 1962, did not make the President's Order ineft'ective. By
virtue of the saving clause in s. 48 of the Act "any rules made,
anything done or any action taken" under the Ordinance shall
be deemed to hi.ve been made, done or taken under the Act.
Further, the reference to the .Ordinance in the
Order
was, by virtue of s. 8 of the General Clauses Act, to be read as
a reference to the Act.
The word "instrument" in s. 8
included the President's Order.
ORIGINAL JURISDICTION : Habeas Corpus Peti·
tion No. 15 of 1963.
Hebeas Corpus Petition under Art. 32 of the
Constitution of India.
R. K. Garg, for the petitioner.
S. V. Gupta, Additional Solicitor-General of
India, D. R. Prem, R. H. Dhebar and
R. N.
Saehthey, for the respondent.
S. C. Agarwal, R. K. Garg, M. K. Ramamurthi and D. P. Singh, for the intervener.
1963. April 29. The Judgment of the Court
was delivered by
AtM1.n Chwuiltury
v.
Chitf Commissioner,
Unicn T mit2 ry
•f TriJIUr•
SINHA C. J.-On
October 26, 1962, the
·"i•h• C. J,
President having been satisfied that a grave national
emergency exists. whereby the security of India or
any part of the territory thereof is threatened by the
Chinese aggression, issued a Proclamation declaring
the Emergency, under Art. 352 of the Constitution.
That declaration of emergency was laid before
both Houses of Parliament on November 8,1962, and
was approved by the Rajya Sabha on November 13,
1962, and by the Lok Sabha on November 14, 1962 •.
196'3
Mohan Chowdhury
••
Chief CommissiotUT,
Union Ten it or y
of TrifJUra
Sinho C. J.
444
SUPREME COURT REPORTS (1964] VOL.
After the Proclamation of Emergency, as Parliament
was not in session, and as the President was satisfied
that circumstances existed which rendered it necessary
for him to take immediate action for .exercise of the
powers conferred by cl. (1) of

## Text

/ffJ
April 29.
442 StJPRENIE cOtJR. T REPORTS (1964] vot.
SREE MOHAN CHOWDHURY
"·
THE CHIEF COMMISSIONER, UNION
TERRITORY OF TRIPURA
(B. P. SINHA c. J., K. SUBBA RAO, J. c. SHAH,
RAGHUBAR DAYAL and J. R. MUDHOLKAR JJ.)
Fu'l!damtntal
Right8-Proclamation
of E-rgencyDetention-Right to move Supreme Oourt-Susptmion ofOomtitution of India, Aris. 21, 22 and 32-Preaidenl'a Order
·dt. November 3, 1962-General Clauses Act, 1897 (111 of 1897),
•· 8-Defence of India Ordinance, 1962 (4 of .1962)-Defenet of
India Act! 1962 (lil of 1962), s. 48.
On Or.tober 26, 1962, the President issued a proclamation
of Emergency which was later approved by both houses of
Parliament, On the same day he promulgated the Defence of
India' Ordinance, 1962, and under s. 3 thereof the Central
Government promulgated the Defence of India Rules, 1962.
On November 3, 1962, the President issued an Order under Art;
359 (I) of the Constitution suspendiag the right of any person
to move any Court for the enforcement of the rights conferred
by Arts. 21 and 22 during the proclamation of emergency "if
such person has been deprived of any such rights under the
Defence of India Ordinance,1962 or imy rule made thereunder".
On November 20, 1962, the respondent made an order under
r. 30 of the Defence of India Rules for the detention of the
petmoner.
The petitioner moved the Supreme Court under
Art. 32, challenging his detention. The respondent contended
that the petition was not maintainable. The petitioner conten-
'ded that the right to move the Supreme Court under Art. 32
being a guaranteed right could not be, and was not, suspended
and that the President's Order suspending the right was inefl'cctive as it was dependent on the continued existence of the
Ordinance but the Ordinance hacl been repealed by the Defence
oflndia Act, 1962.
Hild that the petition was not maintainable. Though
the power of the Supreme Court to issue a writ in the nature
of habeaa corpus was not touched, the right of the petitioner to
.move the court for such a writ was suspended by the President's
3 S.C:.R.
SUPRBNIE cotiR T REPOR. ts
443
Order. The Order did not suspend all the rights of a citizen to
move the Supreme Court but only the rights under Arts. 21
and 22.
Since his right to
the Court was suspended he
was not entitled to challenge the vircs of the Act and of the
Rules.
The repeal of the Ordinance by the Defence of India
Act, 1962, did not make the President's Order ineft'ective. By
virtue of the saving clause in s. 48 of the Act "any rules made,
anything done or any action taken" under the Ordinance shall
be deemed to hi.ve been made, done or taken under the Act.
Further, the reference to the .Ordinance in the
Order
was, by virtue of s. 8 of the General Clauses Act, to be read as
a reference to the Act.
The word "instrument" in s. 8
included the President's Order.
ORIGINAL JURISDICTION : Habeas Corpus Peti·
tion No. 15 of 1963.
Hebeas Corpus Petition under Art. 32 of the
Constitution of India.
R. K. Garg, for the petitioner.
S. V. Gupta, Additional Solicitor-General of
India, D. R. Prem, R. H. Dhebar and
R. N.
Saehthey, for the respondent.
S. C. Agarwal, R. K. Garg, M. K. Ramamurthi and D. P. Singh, for the intervener.
1963. April 29. The Judgment of the Court
was delivered by
AtM1.n Chwuiltury
v.
Chitf Commissioner,
Unicn T mit2 ry
•f TriJIUr•
SINHA C. J.-On
October 26, 1962, the
·"i•h• C. J,
President having been satisfied that a grave national
emergency exists. whereby the security of India or
any part of the territory thereof is threatened by the
Chinese aggression, issued a Proclamation declaring
the Emergency, under Art. 352 of the Constitution.
That declaration of emergency was laid before
both Houses of Parliament on November 8,1962, and
was approved by the Rajya Sabha on November 13,
1962, and by the Lok Sabha on November 14, 1962 •.
196'3
Mohan Chowdhury
••
Chief CommissiotUT,
Union Ten it or y
of TrifJUra
Sinho C. J.
444
SUPREME COURT REPORTS (1964] VOL.
After the Proclamation of Emergency, as Parliament
was not in session, and as the President was satisfied
that circumstances existed which rendered it necessary
for him to take immediate action for .exercise of the
powers conferred by cl. (1) of Art. 123 of the
Constitution, he promulgated the Defence of India
Ordinance (IV of 1962) on the same date-October
26, l 9o2. By s. 3 of the Ordinance, the Central
Government has been empowered to make rules as
appear to be necessary or expedient for securing the
defence of India and civil defence, 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 those powers, the Central Government
promulgated the Defence of India Rules, 1962, by
notification in the Official Gazette, Extraordinary
dated November 5, 1962. The relevant portion
of r. 30 is as follows :
"The Central Government or the State Govern,
ment, if it is satisfied with respect to any
particular person that with a view to preventini
him from acting in any manner prejudicial to
the defence of India and civil defence, the
public safety, the maintenance of public order,
India's relations with
foreign powers, the
maintenance of peaceful conditions in any part
of India or the efficient conduct of military
operations, it is necessary so to do, may make
an order:-
lt
. (b) directing that he be detained;
x''
During the operation of the Proclamation of Emergency the, President issued, on November 3, 1962,
3 S;C.R.
SUPREME COURT REPORTS
445
the following
Order
suspending the right to
move any Court for the enforcement of rights
conferred by 'Arts. 21 and 22 of the Constitution :
"In exercise of the powers conferred by Clause
(1) of article 359 of the Constitution, the
President hereby declares that right of any
1 person to move any court for the enforcement
of the rights conferred by article 21 and article
22 of the Constitution shall remain snspended
for the peried during which the Proclamation
of Emergency issued under clause (I) of article
352 thereof on the 26th October 1962, is in
force, if such person has been deprived of any
such rights under the Defence of India Ordi·
nance, 1962 ( 4 of 1962) or any rule or order
made thereunder."
In exercise of the power conferred by r. 30
aforesaid of the Defence of India Rules, thi: Chief
Commissioner of Tripura issued an order of deten·
tion in respect of the petitioner on
November 20,
1962:
"No. F. 22 (59)-PD/62
TRIPURA ADMINISTRATION
OFFICE OF THE CHIEF
COMMISSIONER.
ORDER
Agartala,
November 20, 1962.
WHEREAS, I am satisfied that Shri Bipul
alias Mohan Chaudhri S/o Sri Bimala
Charan
Chaudhri of Sutarmura P. S.
should be
detained with a view to preventing him/her from act·
ing in any manner prejudicial to the defence of India
and Civil defence, public safety, the maintenance of
1961
Mohan Ch. oltJf!ltw?
••
Chief Commissionn,
V•ion Tttri or'
of Trip"ra
Sinha C. J.
''JJ63
Mahan Chowdkury
v.
, C/Uef Commission.Ir,
Unitn1 Tertitory
of
Sioh• C. J.
446 SUPREME COURT REPORTS (1964] VOL.
public order, India's relations with foreign powers and
the maintenance of peaceful. conditions in Tripura.
Now, therefore, in exercise of the powers
conferred by Rule 30 of the Defence of India Rules,
1962 read with sub-rule (11) of Rule 2 of the aforesaid
Rules and all other powers enabling in that behalf,
I hereby direct that the aforesaid person be detained
in the Central Jail at Agartala until further orders.
Sd/- (S. P. Mukerjee)
Chief Commissioner. Tripura."
By a subsequent order dated December 3, 1962,
of the Chief Commissioner Tripura, the petitioner
was transferred from Agartala Central Jail to
Hazaribagh Central Jail. The order is in these
terms :
"TRIPURA AD MINISTRATION
HOME DEPARTMENT
No. F. 22 (59)-PD/62.
Agartala,
December 3, 1962.
Agrayahana 12,, 1884,
ORDER
In exercise of the powers conferred by sub-rule
( 5) of Rule 30 of the Defence of India Rules, 1962 ·
read with sub-rule
(11) of Rule 2 of the said Kules
and all other powers enabling in that behalf, I hereby direct that detenue Shri Bipul Chaudhury alias
Mohan son of L. Bimala Charan Chaudhury of
Sutarmura, Bishalgarh P. S. be transferred from
Agartala Central Jail to Hazaribagh Central Jail,
Bihar for detention in that' Jail, until further orders.
2. The consent of the Governme11t of
has
3 s.c.R. SUPREJ.tlE COURT REPORTS
447
been obtained for the removal of the aforesaid dete·
nue from this Territory to the place mentioned
above (vide th,eir telegram No. 940-Political Special,
dated the 1st December 1962).
Sd/-(S. P. Mukerjee)
Chief Commissioner, Tripura."
In the meantime, the Petitioner had made a
petition under Art. 32 of the Constitution for a writ
of Habeas Corpus against his detention, as aforesaid.
This petition is dated November 30. 1962, while the
petitioner was still in the Agartala Central Jail. It
appears the petition under Art. 32 of the Constitution
was not immediately forwarded to this Court by the
authorities of the Tripura Administration. Hence,
the petitioner sent a petition from the Hazaribagh
Central Jail in Bihar, dated December 15, 1962/
December 18, 1962 for initiating proceedings for
contempt of Court against the Chief Commissioner,
the Union Territory of Tripura. In that petition,
after stating the facts of his detention, he stated that
while in detention in the Agartala Central Jail, the
petitioner had submitted a petition under Art. 32 of
the Constitution for a writ of Habeas Corpus and
that the same had not been sent to this Court and
had been withheld.
He further stated that the
Jailor, Agartala Central Jail, had informed the petitioner that the petition had been sent to Tripura
Administration for ascertaining whether actually a
writ petition lay under the Defence of India Rules.
When this petition was put up before this Court on
January 28, 1963, this Court directed the issue of
notice to the opposite party. In obedience to the
notice Shri S.C.Mazumdar, Judicial Secretary, Union
Territory of Tripura, made an affidavit to the
effect that he had attended to the matter which was
the-subject of the notice and that he had not the
slightest intention to disregard or disobey the authority of this Court. Ile further tendered, on his own
1963
MeA1111 C/u,,.,ihury
v.
Ckilf Commissiorer,
um·tnt T1rritory
of Tripura
!)inha C. J,
,
196S
• Moh•• Ch«wd!M.>
v.
Chi1f CQtnmiJsiontr,
Union T1rrilary
of fripura
Sinha C.J.
448
SUPREME COURT REPORTS (1964) VOL.
behalf and on behalf of the Chief Commissioner,
Tripura, an unconditional apology. He also produced the original petition under Art. 32, dated
November 30, 1962, and went on to state that when
the petition was placed before aim, on a considera -
tion of the Defence of India Rules, and the President's Order aforesaid dated November 3, I 962, he.
took the view that the petition was not maintainable
and that, therefore, "nothing need be done".
He
admitted his mistake, aod realised after consultation
with the Government counsel that the Government
should
not have
taken upon
itself to decide
whether the petition was maintainable or not and
that the same should have been forwarded to this
Court. He further stated that the ·advice tendered
to the Tripura Administration
was bona fide and
that he extremely regretted that the action on his
part "should have resulted in a wrongful act on the
part of our administration", When the matter was
placed before this Court, the Division Bench, by its
order dated February 18, 1963, accepted the unconditional apology on behaif . of Mr. S. C. Mazumdar
and further directed that the Habeas Corpus petition
be posted for preliminary hearing. The Constitution
Bench thereafter, by its order dated March 27, 1963,
directed the issue of Rule, and hearing of the case
within 10 days. As the petitioner had appeared at
the hearing, it was further directed that he be detained
in Delhi Jail till the disposal of the writ petition.
When the matter came up before us for final hearing,
we directed that in view of the important constitutional issues involved it would be more convenient
if the petitioner was represented before us by counsel.
Mr. R. K. Garg has taken·great pains over this case
and has placed all possible considerations before us
for which the Court is obliged to him. The learned
Additional Solicitor-Gelileral
appeared to show
cause on behalf of the respondent, the Chief Commissioner, Union Territory of Tripura. We have fully
heared counsel for both parties.
There was an
•
f'
3 $.C.R.
SUPREME COl RT REPORTS
449
I
'
intervention petition on behalf of one Shri Raj Kumar
Vohra, detained by District Magistrate, Saharanpur,
in a similar writ petition under Art. 32 of the Cpnstitution. As the points to be raised in his petition
were said to be similar to those in the present petition, we allowed the intervention.
The learned counsel for the
respondent has
taken the preliminary objection to the hearing of the
writ petition on merits, on the ground that the
President having suspended the enforcement of the
rights under Arts. 21 and 22 of the Constitution, by
his Order dated November 3, 1962, quoted above in
extenso, the petitioner cannot move this Court under
Art. 32 to enforce the right claimed by him. In
answer to this preliminary objection, Mr. Garg has
vehemently
argued that the right guaranteed by
Art. 32 cannot be suspended under Art. 359, because,
it is said, that Article does not authorise the suspension of the exercise of the rights. He further con ten.
ded that the right to move this Court under Art. 32
itsclf'being a guaranteed right has not been suspended by the Order aforesaid of the President and
that the order suspending the right to move this
Court depended on the condition precedent that there
was a valid Ordinance and rules framed and order
made thereunder. The contention further is that
the condition precedent is not fulfilled because the
Ordinance (IV of 1962) apart from being invalid for
want of legislative competence, has spent its force on
its being repealed by Act (LI of 1962). It is
contended; in other words, that the immunity from
attack would be available, if at all, only in respect of
something done under the Ordinance, but as there
wa0 no.fresh Order by the President under Art. 359,
af• ,r the Ordinance had been replaced by the Act
a• aforesaid, the petitioner was entitled to go into the
m rits of the controversy and could show that the
D rence of India Act was unconstitutional and that
the Rules framed thereunder were equally so.
In
1963
Mohan Chowdhury
y,
Chief Commissi<m1r,
llnion 7 1rritory
nf TrijJura
Sinh• C. J.
J96J
Mohan Clrfluuihury
v,
CllUf Commi.ssiontr,
Union Territory
of Tripura
Sinha C. J.
450
SUPREME COURT REPORTS [1964'] VdL.
our opinion, the preliminary objection is well-fo1o112ded.
We accordingly intimated to the parties that
the Court having accepted the validity of the preliminary objection did not propose to hear the merits
of the case and that our reasons for coming to that
couclmion will be given later. We now proceed to
state our reasons for that conclusion.
The right to move this Court for the enforcement of the fundamental rights guaranteed under
the Constitution is itself a guaranteed right. But
cl. (4) of Art. 32 itself provides that the right so
guaranteed could be suspended in accordance with
the provisions of the Constitution. We have stated
in a positive form what has been provided for in the
negative form by cl. (4), which runs as.follows:
"The right guaranteed by this article shall
not be suspended except as otherwise provided
for by the Constitution."
Now what is the ·provision made by the
Constitution in view of the said clause of Art. 32?
On the Proclamation of Emergency by the Presidcftt
on October 26, 1962, as aforesaid, the provisions of
Art. 19, setting out the different freedoms which all
citizens have the right to enjoy, are suspended with
the result that the power to make any law or to take
any executive action is not fettered so long as the
Proclamation continues to operate (Art. 358).
Secondly, during that period the President is em·
powered by Art. 359 (1), by order to suspend the
right to move any Court for the enforcement of the
Fundamental Rights contained in Part Ur of the
Constitution.
The Order of the President dated
November 3, 1962, already set out, in terms,
suspends the right of any person to move any Court
for the enforcement of the rights conferred by
Arts. 21 and 22 of the Constitution, during the
period of the Emergency.
Prima facie, therefore,
3 s.c.R.
suPRBNl.B COURT RftPORTS
45i
the petitioner's right to move this Court for a writ of
Habeaa OorpvA, as he has purported to do by this
petition, will remain suspended during the period of
the Emergency. But even then it has bee11 contended
on behalf of the petitioner that Art. 359 does not
authorise the suspension of the exercise of the right
guaranteed under Art. 32 of the Constitution, and
that, in terms, the operation of Art. 32 has not been
suspended by the President.
This contention is
wholly unfounded.
Unquestionably, the Court's
power to issue a writ in the nature of habeas corpus
has not been touched by the President's Order, but
the petitioner's right to move this Court for a writ of
that kind has been suspended by the Order of the
President passed under Art. 359 (1). The President's
Order does not suspend all the rights vested in a
citizen to move this Court but only his right to
enforce the provisions of Arts. 21 and 22. Thus, as
a result of the President's Order aforesaid, the
petitioner's right to move this Court, but not this
Court's power under Art. 32, has been suspended
during the operation of the Emergency, with the
result that the petitioner has no locus standi to enforce his right, if any, during the Emergency.
It was also contended that the President's order
of November 3, 1962, is subject to the condition
precedent that there is a valid ordinance and the
rules framed or the orders made thereunder are
valid.
In other words, it is contended that it is
open to the petitioner to canvass the validity of the
Ordinance. · This is arguing in a circle. In order
that the Court may investigate the validity of a
parti.cular ordinance or act of a legislature, the person
movmg the Court should have a locus standi. If
he has not the locus standi to move the Court the
Court. will refuse to entertain his petition q
the v1res of the particular legislation. In view of
the President's Order passed under the provisions of
Art. 359 (1) of the Constitution, the petitioner has
1963
M,,,.,,, crr.wtllmrJ
y,
Cltilf Commis.siontr,
Uni• Te"itory .
of Tripuro
SW.a C. J.
196!
MM C/wwtlltury
••
CltUJ G...U11M111r,
u,,;,. T1rritory
•1 Tri/Mr•
Sitclu C. I.
452 SUPREME COURT REPORTS[l964]
lost his locus standi to move this Court during the I
period of Emergency as already pointed out. That I
being so, this petition is not maintainable •
But it has been argued in the alternative thatl
assuming that the Ordinance is valid and the Presi-.
dent's Order operates against the petitioner, the
words of the last clause in the President's Order,·
beginning with "if such person., are not fulfilled
l;iecause the Ordinance has been repealed by
Act (LI of 1962), as aforesaid.
The question, there•
fore arises : What is the effect of those words? The
learned Solicitor.General has put his argument in
two alternative ways.
Firstly he argued, that
words were descriptive of the person who has been'
detained and not that they lay down a condition
precedent, as contended on behalf of the peritioner!
Prima Jacie it is difficult to accept this argument but
we need not pursue it in view of the conclusion we
have reached on the alternative argument to be
presently dealt with.
Alternatively he contended,
that, under s. 8 of the General Clauses Act (X of
1897), s. 48 of the Act (LI o! 1962), which repeals
Ordinances 4 and 6 of 1962 and which saves anything done or any action taken under those Ordinances has to be construed in such a way as to
continue the Detention Order made under r. 30 of
the Defence of India Rules, even after the repeal of
the Ordinance under which they were promulgated.
Section 48 is in these terms :
·
"48 (1). The Defence of India Ordinance, 1962
and the Defence of India (Amendment) Ordinance 1962, are hereby repealed.
1
(2) Notwithstanding such repeal, any rules
made, anything done or any action taken under
the Defence of India Ordinance, 1962, as
amended by the Defence ofindia (Amendment)
Ordinance, 1962 shall be deemed to have been
.
3 S.C.R.
SUPREME COURT REPORTS
453
made, done or
this Act
had
October 1962."
taken
under this Act as if
commenced on
the 26th
It is contended on behalf of the pet1t1oner that
by virtue of sub-s. (2) of s. 48, quoted above, the
detention order passed agaiust the petitioner will be
deemed "to have been made under the Defence of
India Act, 1962, and that, therefore, the President's
Order of November 3, 1962 which has reference to
the detention order passed against the petitioner
under the Defence of India Ordinance and the Rules
thereunder, was wholly inoperative. The Ordinances
afore11aid had been promulgated by the President
when Parliament was not in session.
They had the
same force and effect as an Act of Parliament,
but they would cease to operate at the expiration
of 6 weeks from the re-assembly of Parliament.
Of necessity, therefore, the Act had to take the
place of the Ordinances within. that period if
the special measures in the interest of public safety
had to be continued.
Hence, the Parliament had to
enact the very same provisions, with the consequential additions and alternations, of the Ordinance 4
and Ordinance 6 aforesaid.
The Defence of India
Act (LI of 1962) itself, in the preamble recites the
Proclamation of Emergency by the President and the
necessity to provide for special measures to ensure
public safety and interest. The Act came into force
on December 12, 19G2.
By operation of s.48 of ·this
Act, the Ordinances aforesaid have been repealed,
but all action taken and all rules made thereunder
have been continued in operation by introducing the
fiction that they
be deemed to have been made
or taken under the Act, which is deemed to have
commenced on October 26, 1962, the date Ordinance
4 was promulgated.
The President's Order of
November 3, 1962, suspending the petitioner's rights
under Arts. 21 and 22 of the Constitution, was made
when Ordinance 4 of 1962 was in operation, and,
!9U
AloA&• CAAJ'lwJry
v.
CAi1f Com•issiMlf,
lf11fo11 TlfT'itory
of Trifnl••
C. /,
1963 •
Af0Aa11 Clwwdhu.r:J
••
CAiej Cammis.1ion1r,
· Unimt T•rritor,
•f Tripura
Sin/lo<;. / .. -
454
SUPREJ.m3 COURT REPORTS [1964] VOL.
therefore, had to take note of the facts as they then
existed. Section 8(1) of the General Clauses Act,
which applies to the construction· of Act(LI of 1962),
is in these terms :
. "S(l) where this Act, or any Central Act or
Regulation made after the commencement of
this Act, repeals and re·enacts, with or without
modification, any provision of a former enactment, then references in· any other enactment
or in any instrument to the provision so repealed .shall, unless a different intention appears, .
be construed as references to the provision so .
re-enacted." ·
Are the provisions set out above applicable to
the construction of the Order of November 3, 1962,
passed by the President suspending the petitioner's
right to move this Court? It has not been contested
that those provisions applied to the construction or
the Act (LI of 1962), which repeals and re-enacts
the provisions of the Ordinances aforsaid. But then ·
the question arises whether ·they are available in
construing the following· words of the ·President's ·
Order:
.
"If any such person has been deprived or any
such rights under the Defence in India Ordinance; 1962 (4of1962) or any rule or order
made thereunder'.'.
·
Is the President's Order in question an "instrument"
within · the meaning of the section? The General
·
Act does not define the expression "instru-
·. ment". Therefore, the expression must be taken to·
have been used in the sense in which it is generally
understood in legal parlance. In Stroud's Judicial
Dictionary of Words and Phrases (Third Edition1
3 S.C.R.
SUPREME COURT REPORTS
465
Volume 2, page 1472), "instrument" is described as
follows:
"An 'instrument' is a writing, and generally
imports a document of a formal legal kind.
Semble, the word ma) include an Act of Parliament ......... (11) Conveyancing Act, 1881 (44 &
45 Viet. c.41), s.2(xiii), 'instrument' includes
deed, will, inclosure, award and Act of Parlia·
ment ...... ".
The expression is also used to signify a deed interpartes or a charter or a record or other writing of a
formal ·nature. But in the context of the General
Clauses Act, it has to be understood as including
reference to a formal legal writing like an Order
made under a statute or subordinate legislation or
any document of a formal character 1aade under
constitutional or statutory authority. We have no
doμbt in our mind that the expression "instrument"
in s.8 was meant to include reference to the Order
made by the President in exercise of his constitutional powers.
So construed, the President's Order
would, even after the repeal of the Ordinance aforesaid continue to govern cases of detentio? made
under r. 30 aforesaid under the Ordinances. It must
therefore, be held that there is no substance in the
contention that the petitioner's detention originally
made under the rule under the Ordinctnce would not
be deemed to have continued under the Act (LI o'f
1962). Equally' clearly, there is no substance in the
contention that the same Order should have been
repeated by the President after the enactment of the
Act. It would have been a sheer act of supererogation and the legal fiction laid down in s.8 is meant
to avoid such unnecessary duplication of the use of
the constitutional machinery. A proper construction
of the provisions of s.48 of the Act, which has re'
placed the Ordinances aforesaid, read in th c light of
ibe provisions of s.8 of the General Clauses Act
1953
MoAan. Cltowtlhury
v.
C/siif Commi.uio11u,
Ulfio-. Territor1
•J T1ip.,.
Sinho G. J.
1963
Mohan Chowdhury
v.
ChieJ Ct1mm issiomr 1
Unirm Territory
of Tripura
Sinh• C. I.
!9S
A;ril 29,
456 SUPRENl.FJ COURT REPORTS (1964] VOL.
leaves no room for doubt that the detention order
passed against the petitioner was intended to be continued even after the repeal of the Ordinances which
were incorporated in the Act (LI of 1962). That
being so, the Order of the President must have the
effect of suspending the petitioner's right to move
this Court for a writ of habeas corpus under Art. 32
of the Constitution. After the petititioner had been
deprived, for the time being, of his right to move
this Court, it is manifest that he cannot raise any
questions as regards the vires of the Ordinances or of
the Rules and Orders made thereunder. In the
result, the application is held to be not maintainable,
and, is therefore, dismissed.
Petition tlismi1aed.
WORKMEN OF JOINT STEAMER
COMPANIES
v.
JOINT STEAMER COMPANIES
(P. B. GAJENDRA.GA.DJUR, K. N. WA.NCH00
and K. C. DA.s GUPTA JJ.)
Industrial dispute-Bonus-Industry operaiing in India
. and Pakistan, if, form one ; .. ;egrated industrial actillityTests-Full Bench Formula-A' ,,ticability to -a part only of tM,
total operations-Inspection •
document• by workmen if and
when acce'8ible-Jndustrial 1 1pulu Act, 1947 (14 of 1947),
s. 21.
The respondent comp nies were carrying on transport
business in the t:astern part of Lhe country in co-operation with
each other, which continued even after the partition of India.
The main traffic of the company in the years 1949 to 1952 was
as before, namely, (a) traffic within India; (b) traffic withil!