# GHULAM SARWAR v. UNION OF INDIA & ORS

- **Citation:** [1967] 2 S.C.R. 271
- **Court:** Supreme Court of India
- **Decided:** 1966-12-15
- **Bench:** K. Subba Rao, M. Hidayatullah, S. M. Sikri, R. S. Bachawat, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghulam-sarwar-v-union-of-india-ors-3938
- **Pages:** 15

## Headnote

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Practice-Order of High Court dismissing petition for issue qf writ of
habeaa corpus-Petition fo Supreme Court under Art. 32-0rder of High
Court If res judicata.
·
Constitution of /lldia, 1950, Art. 359-If Presiden. can issue more than
one ord<r-Order applicable only to foreigners-If violative of Art.
14.
Foreigners Act (31 of 1946)., s. 3(2) (g)-Detention under for investigation into conspiracy to smuggle gold-If mala lido.
Supreme Court Rules, ·0.35, rr. 3 and 4 Scope of.
After the President of India issued a Proclamation of Emergency
under Art. 352( 1) of the Constitution in October 1962, he io"11ed two
orders under Art. 359( 1) which were subsequently amended. By one, a•
amended, the right of a foreigner to move any court for the enforceneit
of the rights conferred by Arts. 14, 21 and 22 of the Constitution wa•
suspended during the period of emergency.
By the other order, as
amended, the right of any person to move any court for the enforce ..
ment of the rights conferred by Arts. 14, 21 and 22 was suspended
during the period of emergency, if such person was deprived of any
such rights under the Defence of India Ordinance, 1962, or any rule or
order thereunder.
In 1964, the petitioner, who was a Pakistani national, was arrested
for an offence unller the Indian Customs Act, 1962. When he WU about
ti> be enlarged on bail he was detained by an order under s. 3(2)(1!) of
the Foreipers Act, 1946. According to the respondent, the petitioner
was detamed as investigation was in progress in respect of a caae or
conspiracy to smuggle gold, in which the petitioner was involved. Thereafter,
h~ was tried and convicted for the o ince under the Customs Act
and sentenced to 9 months imprisonment.
Before the expiry of the
term of imprisonment he moved the High Court for the issue of a writ
of habeas corpus, but the petition was dismissed.
After serving the
sentence he moved this Court, under Art.· 32, again for the issue or a
writ of habeas corpus raising new contentions as to the validity of s.
3(2)(g) of the Foreigners Act and the President's order under Art. 359(1),
relating to foreigners.
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HELD (Per Subba Rao, C. J. Hidayatullah, Sikri and Shelat, JJ;):
(1) The order of the High Court does not operate as res judicata, either
because it is not .a judgment or because the principle is not applicable
to a fundamentally lawless order, and this Court has to decide the petiti<in
on. merits. [277 DJ
In the case of a High Court, when it functions as a Divisional Bench
it speaks for the entire court, and therefore, it cannot set aside the
order made by another Divisional Bench in a petition for a writ of'
habeatf corpus, except on fresh evidence.
But when the person detained
~72
SUPREME COURT REPORTS
(1967] 2 S.C.R.
tiles an origi11;1l petition for habeas corp1t.~ before 1his Court un,Jcr Art.
A
.12, tho order of the High Coun will not operate as res judicata. If the
Joctrine of l'C.< iudicata is applicabl~ in such a ca'i<! so would be tho
Joctrinc of comtructive res judicota. and. if a pcticioncr could have raised
a contention \vhich would m:ikc the detention Order fundamentally lav.·-
less, but did not do so in the Hig)t C<iurt. it would be deemed to have
been raised.
and this Courl. though enjoined by the Con<titution to
protect the right of a person illegally detained. may become p<l\\Crl""5 ID
8
do so [276 F-H: 277 A-CJ
Da~1-c1> '· S1<11c of U.I' .. [1%2[ I S.CR. 574, rdcrrcJ to.
(2) Article 359 empo"·crs the President to make an order for tl1e
purpose mentioned therein. and as the singular includes the plural. he
can make dilTcrent order-; applicable to different groups of persons.
Tht!re is nothing in the Artich! 1,1:hich
pr~vcntco the President from r"1tricting the scope of a.n or<lcr to a c1:iss of pc~ons. namt:f, foreigners. [280 A-CJ
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(3) There i.:; a distinction hct\\·ccn the President".; or<lcr and the effect
of that order.
Under Art. 359( 1) the President can only make an order
which i< valid.
If the order doc; no

## Text

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GHULAM SARWAR
v.
UNION OF INDIA & ORS.
December 15, 1966
B
[K. SUBBA RAO, C.J., M. HIDAYATULLAH, S. M. SIKRI,
R. S. BACHAWAT AND J. M. SHELAT, JJ.j
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Practice-Order of High Court dismissing petition for issue qf writ of
habeaa corpus-Petition fo Supreme Court under Art. 32-0rder of High
Court If res judicata.
·
Constitution of /lldia, 1950, Art. 359-If Presiden. can issue more than
one ord<r-Order applicable only to foreigners-If violative of Art.
14.
Foreigners Act (31 of 1946)., s. 3(2) (g)-Detention under for investigation into conspiracy to smuggle gold-If mala lido.
Supreme Court Rules, ·0.35, rr. 3 and 4 Scope of.
After the President of India issued a Proclamation of Emergency
under Art. 352( 1) of the Constitution in October 1962, he io"11ed two
orders under Art. 359( 1) which were subsequently amended. By one, a•
amended, the right of a foreigner to move any court for the enforceneit
of the rights conferred by Arts. 14, 21 and 22 of the Constitution wa•
suspended during the period of emergency.
By the other order, as
amended, the right of any person to move any court for the enforce ..
ment of the rights conferred by Arts. 14, 21 and 22 was suspended
during the period of emergency, if such person was deprived of any
such rights under the Defence of India Ordinance, 1962, or any rule or
order thereunder.
In 1964, the petitioner, who was a Pakistani national, was arrested
for an offence unller the Indian Customs Act, 1962. When he WU about
ti> be enlarged on bail he was detained by an order under s. 3(2)(1!) of
the Foreipers Act, 1946. According to the respondent, the petitioner
was detamed as investigation was in progress in respect of a caae or
conspiracy to smuggle gold, in which the petitioner was involved. Thereafter,
h~ was tried and convicted for the o ince under the Customs Act
and sentenced to 9 months imprisonment.
Before the expiry of the
term of imprisonment he moved the High Court for the issue of a writ
of habeas corpus, but the petition was dismissed.
After serving the
sentence he moved this Court, under Art.· 32, again for the issue or a
writ of habeas corpus raising new contentions as to the validity of s.
3(2)(g) of the Foreigners Act and the President's order under Art. 359(1),
relating to foreigners.
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HELD (Per Subba Rao, C. J. Hidayatullah, Sikri and Shelat, JJ;):
(1) The order of the High Court does not operate as res judicata, either
because it is not .a judgment or because the principle is not applicable
to a fundamentally lawless order, and this Court has to decide the petiti<in
on. merits. [277 DJ
In the case of a High Court, when it functions as a Divisional Bench
it speaks for the entire court, and therefore, it cannot set aside the
order made by another Divisional Bench in a petition for a writ of'
habeatf corpus, except on fresh evidence.
But when the person detained
~72
SUPREME COURT REPORTS
(1967] 2 S.C.R.
tiles an origi11;1l petition for habeas corp1t.~ before 1his Court un,Jcr Art.
A
.12, tho order of the High Coun will not operate as res judicata. If the
Joctrine of l'C.< iudicata is applicabl~ in such a ca'i<! so would be tho
Joctrinc of comtructive res judicota. and. if a pcticioncr could have raised
a contention \vhich would m:ikc the detention Order fundamentally lav.·-
less, but did not do so in the Hig)t C<iurt. it would be deemed to have
been raised.
and this Courl. though enjoined by the Con<titution to
protect the right of a person illegally detained. may become p<l\\Crl""5 ID
8
do so [276 F-H: 277 A-CJ
Da~1-c1> '· S1<11c of U.I' .. [1%2[ I S.CR. 574, rdcrrcJ to.
(2) Article 359 empo"·crs the President to make an order for tl1e
purpose mentioned therein. and as the singular includes the plural. he
can make dilTcrent order-; applicable to different groups of persons.
Tht!re is nothing in the Artich! 1,1:hich
pr~vcntco the President from r"1tricting the scope of a.n or<lcr to a c1:iss of pc~ons. namt:f, foreigners. [280 A-CJ
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(3) There i.:; a distinction hct\\·ccn the President".; or<lcr and the effect
of that order.
Under Art. 359( 1) the President can only make an order
which i< valid.
If the order doc; not violate Art. 14 ii can validly
take away the right to
n1ovi.: the court to enforce Arr. 14.
But an
order makinl:! ;1n unjllStificd discrin1ination in suspending the right to
move a court unJcr Art. 14 ilSl·lf. v.·ilt he void at i:s inception.
Therefore, the validity of the President's order issued under Art. 359( I) could
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he questioned if it infringed the provisions of Art. 14 of the Constitl>-
tion. [280 F·Hl
Sree J..{ol1an C!iowd/1111T \. (,'/1ief Co111111i.fsio11er, Trirurll, [1964) 3
S.C.R. 442. explained.
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(4) There
i~ ho\lr·evcr, a clear nexus between the classification info
foreigners and citizens, and the object sought to be achieved by the
President's orders.
Therefore the making of two orders, one confined to
foreigners and the other applicable to all person. including foreignen,
does not violate Art. 14. The two orders are mainly intended to operate
in different fields and their se<>pe is different,
though there is some
overlapping.
There \\'as a greater danger from the !'.Uhversivc activiti~
of foreigners. and therefore, it was Ol."CCSSary to is!lue a sptcial order.
wider i3 se<>pc and taking in other rights. than that which was confined
only to persons who had been deprived of certain rights under the Defence
of India Ordinance. [282 A-DJ
(S) As the President's order suspending the_ right to move tbe C<lUrt
to enforce the right under Art. 14 is valid, the petitioner has no right to
move the court 9n~uent to the incl~ion of Art. 14 in the Prci;ident's
order relating to foreigners.
The fact that he complained of his detention for a period earlier than the amendment has no bearing on the question of maintainability of the petition. [282 H; 283 A]
(6) If the petitioner was in fact involved in a conspiracy to smugsle
i:old, there is no reason why the wide power conferred on the Central
Government to detain him under s. 3(2) (g) of the Foreigners Act could
not be invoked.
Such a detention for the purpose of investigation was
not ma/a f,de. [283 F-G}
[The question whether this C<>urt can ascertain whether the action of
the Executive in declaring the ernergency or continuing it is actuated by
mala (ul-'S and is an abuse of its poi.er, left open.} [278 E]
Per Bachawat, I: (!) The order of dismis.<al by the High Court doea
not operate as res judlcata and does not bar the petition under Art. 32,
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GHULAM SARWAR v. UNION (Subba Rao, C.J.)
273
asking for the issue of a writ of habeas corpus on the same facts.
The
petitioner has the fundamental right to move this Court under Art. 32 and
the petition must therefore be entertained and examined on merits.
The
order of the High Court is not a judgment; and the previous dismissal
of such a petition by the High Court is only one of the matters which
this Court may take in10 consldcration under 0. 35, rr. 3 and 4 of the
Supreme Court Ruic.;, before issuing a rule nisi.
The petitioner, however, would not have a right to move this Court under Art. 32. more
than once on the same. facts. 1283 H; 284 A-CJ
(2) Assuming that !he President's order under Art. 359(1) is "l:.w"
within the meaning of Art. 13 ( 2). and can he pronounced invalid on
lhe ground that it abridges or lakes away the right conferred by Art. 14,
the order in the present case is not di:>criminatory and is not violative 0f
Ari. 14. [285 E-F]
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ORIGINAi. JURISDICTION : Writ Petition No. 155 of '%6.
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Writ Petition under Art. 32 of the Constitution of India for
the enforcement of fundamental rights.
R. V. Pillai, for the petitioner.
N. S. Bindra and R. N. Sachthe)', for respondents Nos. I to 3.
The Judgment of SuBBA RAO, C.J., HIDAYATULLAH, SIKRI and
SHELAT, JJ. was delivered by
SUllBA RAO, C.J. BACHAWAT, J.
delivered a seperate Concurring Judgment.
Subba Rao, C.J. This p~tilion under Article 32 of the Constitution of India raises the question of validity of t'he detention of
the petitioner under s. 3 of the Foreigners Act, 1946 (Act No. 31
of 1946) (hereinafter called the Act).
The petitioner is a Pakistani national who entered India without
any travel documents. On May 8, 1964, he was arrested in New
Delhi by the Customs Authorities under s. 135 of the Indian Cust•.>1m Act, 1962.
On May 9, 1964, he was ordered to be enlarged
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on bail. On May 18, 1965, he was.ordered to be released.
When
he was about to be released from jail, a detention order was served
on him hy the Central Government under s. 3(2)1 •) of the Act.
It was said that he had to be detained, as police investigation was
in progress in respect of a case of conspiracy to smuggle gold of~
which he was a member.
On May 29, 1965, he was convicted by
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the Maghtrate, First-Class, Delhi, of an offence under the Customs Act and sentenced to undergo rigorous imprirnnment for a
period of 9 months and to pay a fine of Rs. 2,000/-. The appeal
filed by him to the Sessions Judge against that order was dismissed.
The petitioner underwent imprisonment and also paid the fine.
Before his term of imprisonment expired, the petitioner filed a
writ of liaheas corpus in the Circuit Bench of t:1e Punjab High Court
H
at Dellli challenging his detention. That petition was dismissed
hy Khanna, J., on merits.
Before the learned Judge the constituti0nal validity of s. 3(2)(g) of the Act was not c<1nvassed.
The
Ml Sup. Cl/67 -4
274
SUl'Rl!Mll COURT RP.PORT~
(1967] 2~5.C.R.
learned Judge held that the section authorised the Government
to make the said order of detention on its subjective satisfaction
and that the Court could not question its validity in the absence
of any mala jides.
He negatived the contention raised before him
that an order under that sub-section could not be made for the
purpose of completing an investigation in a conspiracy case, as
no such limitation was found therein. Jn short, he dismissed the
petition on merits.
The present petition was filed in this Court under Article 32
of the C:mstitution on May 12, 1966 for issue of a writ of lm!>eas
'carpus against the respondents directing them to set him at liberty
on the ground that the provisions of the Act •1·ere invalid.
Before we consider the various contentions raised by Mr·
R. V. Pillai in support of the petition, we would at the outset deal
with a preliminary objection raised by Mr. N. S. Bindra, learned
coumel appearing for the r "spondents. Mr. N. S. Bindra, contended that the order made by Khanna, J., dismissing the writ of
habea.r corpus filed in the Circuit Ber.ch of the Punjab High Court
operated as resj11dict11a and barred the maintainability of the present
application. The decision of this Court in Daryao v. Thi· State
of U. P.( 1) was relied upon in support of the said contention.
There, the High Court dismissed a writ petition under Art. 226
of the Constitution afler hearing the matter on merits, on 'l the
ground that no fundamental right was proved or contravened and
that its contravention was constitutionally justified. The petitioner therein did not prefer an appeal against that order to this
Court; but he filed an independent petition under Art. 32 of the
Constitution in this Court on the same facts and for the same
reliefs. This Court held that the petition in this Court would be
barred by the general principles of res judicata. That decision
related to a right claimed by the petitioners therein. The petitioners in that case sought to enforce their fundamental right to
property which had been negatived by the High Court in its order
made on an application presented by them under Art. 226 of the
Constitution. While upholding the plea of ri•s judicata, this Court
made the follo"'ing observations in the context of the said plea
ris-a-vis the writ of habeas corpm :
"Jn' England, technically an order rassed on a petition for habeas corpus is not regarded as a judgment
and that places the petitions for habeas corpus in a class
by themselves. Therefore, we do not think that the English
analogy of several habeas corpus arrlications can assist the
petitioners in the present case when they seek to resist the
application of res judicata to petitions filed under Art. 32.
Before we part with the topic. we would, however, like to
(I) [1962] I S.C.R. 574, 590.
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GHULAM SARWAR v. UN.ION (Subba Rao, C.J.)
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add that we propose to expr~ss no opinion on the question
as to whether repeated aprlications for habeas corpus
would be competent under 0ur C0nstituti::m. That is a
matter with 11hich we arc n0t concerned in the present
proceedings."
A decision which expressly leaves open a question cannot obviously
be an authority on the said question. The said question, which
was so left open, now falls to be decided.
Conversely, the correctness of that decision does not call for
any reconsideration in the present petition, for that is ·outside the
scope of the question now raised before us.
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This leads us to the consideration of the scope of a writ of
habeas corpus. The nature of the writ of habeas corpus has been
neatly summarized in Corpus Juris Secundum, Vol. 39 at p. 424
thus :
"The writ of habeas corpus is a writ directed to the
person detaining another, commanding him to produce the
body of the prisoner at a designated time and place, with
the day and cause. of his caption and detention, to do,
submit to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf".
Blackstone in his Commentaries said of this writ thus :
"It is a writ antecedent to statute, and throwing
its root deep into the genius of our common law ....
It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and
imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its
use occurring in the thirty-third year of Edward I".
This writ has been des~ribed by John Marshall, C.J., as "a great
constitutional privilege". An eminent judge observed "there is
no higher duty than to maintain it unimpaired". It was described
as a magna carta of British liberty. Heavy penalties are imposed
on a judge who wrongfully refuses to entertain an application for
a writ of habeas corpus. The history of the writ is the history of
the conflict between power and liberty. The writ provides a prompt
and effective remedy against illegal restraints. It is inextricably
intertwined with the fundamental right of personal liberty. "Habeas
Corpus" literally means "have his body". By this writ the court
can direct to have the body of the person detained to be brought
before it in order to ascertain whether the detention is legal or
illegal. Such is the predominant position of the writ in the AngloSaxon jurisprudence.
We need not go into the history of this writ in India, for it is
now incorporated in Art. 226 and Art. 32 of the Constitution.
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276
SUP!ll!MB COURT P.EPOllTS
(1967) 2 S.C.lt.
On the question of res judicata, the English and the American
Courts agreed that the principle of res judicat~ is not applicable
to a writ of habeas corpus, but they came to that conclusion on
different grounds. It was held in England that a decision in a
writ of habeas corpus was not a judgment, and therefore it would
not operate as res judicata and on that basis it was thought at one
time that a person detained could file successive applications before
different judges of the same High Court. But subsequently the
English courts held that a person detained cannot file successive
petitions for a writ of habeas corpus before different courts of the
same Division or before different Di visions of the same High Coun
on the ground that the Divisional Court speaks for the entire Division and that each Division for the entire Court, and one Division
cannot set aside the order of another Division of the same Court
[Sec Re Hastinv (1) (No. 2) and Re Ha-'lings (2) (No. 3)]. The
Administration of Justice Act, 1960 has placed this view on a statutory basis, for under the said Act no second application can be
brought in the s1mc court except on fresh evidence. The American
Courts reached the same conclusion, but on a different principle.
In Edward M. Fay v. Charles Nola (3) the following passage appears :
"As put by Mr. Justice Holmes in Frank v. Mangum (4) : If the petition discloses facts that amount to loss of jurisdiction in the trial
court, jurisdiction could not be restored by any decision of law.
It is of the historical essence of habeas corpus that it lies to test
proceedings so fundamentally lawless that imprisonment pursuant
to them is not merely erroneous but void.
Hence, the familiar
principle that res judicata is im~ppl;cable in habeas proceedings."
The same view was expressed in Won,; Doo v. United States(') :
Harmon Metz Waley v. James A. Johnston (6) : Salinger v. Loisel (1) :
United States v. Shaughnessv (8): and others.
But coming to India, so far as the High Courts are concerned•
the same principle accepted by the English Courts will equally apply•
as the High Court functions in Divisions not in benches.
When
it functions as a Division, it speaks for the entire court, and, therefore, it cannot set aside the order made in a writ of habms corpm
earlier by another Division Bench.
But this principle will not
apply to different courts.
The High Courts of Allahabad, Bombay,
Madras, Nagpur and Patna and East Punjab have accepted this
view, though the Calcutta High Court took the view that successive
applications of habeas corpus could be filed.
But unlike in England,
in India the person detained can tile original petition for enforcement of his fundamental right to lihcrty before a court other than
the High Court, namely, this Court. The order of the High Court
(I) 119181 3 All.E.R. 625.
(3) 9 L. Ed. _859.
(5) 68 I..E D. 999.
\1) (19Z5) 265 U.S. 224.
(2) (1959) I All E.R. 698.
1o11 231 t:.s. 3.:8.
(61 86 L. E.J. 13 2
(8) (195-\) 347 U.S. 26.i.
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GHULAM SARWAR I'. UNION (S11bba Rao, C.J.)
277
in the said writ is not res judicata as held by the English and the
American Courts either because it is not a judgment or because
the principle of res judicata is not applicable to a fundamentally
lawless order. If the doctrine of res judicata is attracted to an
application for a writ of habeas corpus, there is no reason why
the principle of constructive res judicata cannot also govern the
said application, for the rule of constructive res judicata is only
a part of the general principles of the law of res judicara, and if
that he applied, the scope of the liberty of an individual will be
considerably narrowed. The present case illustrates the position.
Before the High Court the petitioner did not question the constitutional validity of the President's order made under Art. 359 of
the Constitution. If the doctrine of constructive res judicata be
applied, this Court, though it is enjoined by the Constitution
to· protect the right of a person illegally detained, will become
powerless to do so. That would be whittling down the wide sweep
of the constitutional protection.
We, therefore, hold that the order of Khanna, J., made in the
petition for habeas corpus filed by the petitioner does not operate
as res judicata and this Court will have to decide the petition on
merits.
It was suggested that the declaration of Emergency under
Art. 352 of the Constitution in the year 1962 and the continuation
of the emergency for 4 long years after the cessation of the hostilities with China is ma/a fide and is an abuse of powers conferred on
the President under Part XVIII of the Constitution. The question
raised involves two points : (1) whether the declaration of emergency or the continuation of it is vitiated by ma/a fides or abuse of
power, and (2) whether such a question is justiciable in a court of
law. Our Constitution seeks to usher in a Welfare State where
there is prosperity, equality, liberty and social justice. It accepts
3 concepts for bringing about such a State: (I) Federalism; (2) Democracy; (3) Rule of Law. in which fundamental rights and social
justice are inextricably integrated. Under Part XVIII when the
emergency is declared both the Legislative and the Executive powers
of the Union are extended to States. The Federal Government
is practically transformed into unitary form of Government. The
fundamental rights of the people under Art. 19 are abrogated and
the Executive is empowered to suspend the right to move thP, court
for the enforcement of any other fundamental right. The executive
is also empowered to direct that all or any other provisions relating
to distribution of revenue be suspended during that period. Part
XVIII appears to bring down the grand edifice of our Constitution
at one stroke, but a little relkction discloses that the temporary
suspension of the scheme of the Constitution is really intended to
preserve its substance. This extra ordinary power.is unique to our
278
SUPREME COURT REPORTS
[1967] 2 S.C.R.
Constitution. It reflects the apprehension~ of the makers of the
Constitution and their implicit confiJence in the parties that may
come into power from time to time. Two expressions indk-ate the
eittra ordinary situation whereunder this Part was intended to
come into force. The expression 'grave emergency' in Art. 352(1)
and the eitpression 'imminent danger' in Art. 352( 3) show that the
existence of grave emergency or imminent danger is a pre-condition for the declaration of emergency. Doubtless, the question
whether there is grave emergency or whether there is imminent
danger as mentioned in the Article is left to the satisfaction of the
Executive, for it is obviously in the best position to judge the situation. But there is the correlative danger of th~ abuse of such
extra ordinary power leading to totalitarianism. Indeed, the perversions of the ideal democratic Constitution i.e. Weimar Constitution of Germany, brought about the autocratic rule of Hitler and
the consequent disastrous World War. What is the safeguard
against such an abuse? The obvious safeguard is the good sense
of the Executive, but the more effective one is public opinion. A
question is raised whether this Court can ascertain whether the
action of the Executive in declaring the emergency or continuing
it is actuated by malafides and is an abuse of its power. We do
not propose. to express our opinion on this question as no material
has been placed before us in that regard. It requires a careful
research into the circumstances obtaining in our country and the
motives operating on the minds of the persons in power in continuing the emergency. As the material facts are· not placed before us,
we shall not in this case express our opinion one way or other on
this all important question which is at present agitating the public
mind.
Mr. Pillai then contended that the power of the President
under Art. 359(1) to suspend the right to move any court for the
enforcement of fundamental rights must have a real nexus to the
security of India, and that the impugned order had no such nexll!.
The President's order under Art. 359(1) of the Constitution reads :
"GSR-1418/30-10-62 : In exercise of the powers conferred by clause (I) of Article 359 of the Constitution,
the President hereby declares that the right of any person
who is-
(a) a foreigner, or
(b} .
to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution
shall remain suspended for the period during which the
Proclamation of Emergency issued under clause (I) of
Article 352 thereof on the 26•h October, 1962 is in force.
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GSR 1276127-8-1965 : In exercise of the p'Owers conferred by clause (I) of Article 359 of the Constitution,
the Pres:dent hereby makes the following further amendment in Order No. GSR-1418 dated 30-10-1962 namely :
'In the said orders for the word and figure 'Article 21'
the words and figures 'Article 14, Article 21' shall be
substituted."
Under Article 352 an emergency could be declared only when the
security of India or of any part of the territory thereof is threatened
whether by war or external aggression or internal disturbance, or
when there is an imminent danger thereof; and any order issued
under Art. 359 must have some correlation to the security of India,
external aggression or internal disturbance.
But the impugned
order, the argument proceeded, was so wide as to deprive a foreigner
of his fundamental rights though there was no connection between
such dcprivatio[l and the security of India etc. To state it differently,
the argument was that the scope of .he order under Art. 359(1)
should be confined only to the sccJpe of the reasons on the basis
of which an emergency could be declared.
In the instant case,
it was said that the said order empowered the Executive to
detain the petitioner to await investigation in regard to smuggling
of gold which could possibly have no relation to the security of
India. We do not propose to express our opinion on this important
question, as we are not satisfied on the material placed before
us that the detention of the petitioner has no nexus to the emergency.
The next contention was that the President under Art.· 359( 1)
could not make orders suspending the right to move any court
in respect of different categories of persons for the enforcement
of the same fundamental right. To appreciate this contention,
it may be mentioned that apart from the order dated 30-10-1962
relating to foreigners
which
we have already noticcdr the
President passed an order dated 3-11-1962. It was subsequently
amended on 11-11-1962. The order as amended declares that the
right of any person to move any court for the enforcement of the
rights conferred by Arts. 14, 21 and 22 of the Constitution shall remain
suspended for the period during w,hich the Proclamation of Emergency issued under clause (1, of Art. 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 Ordinance, 1962 ( 4 of 1962)
or anv rule or order made thereunder. It will be seen that the
order dated 30-10-1962 was confined tO foreigners and the order
dated 3-11-1962 was confined to persons who had been deprived
of their rights under the Defence of India Ordinance, 1962. Reliance was placed upon the terms of Art. 359 and a contention was
raised that the said Article did not countenance orders on different
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SUPREME COURT REPORTS
(1967] 2 S.C'.R.
groups of persons. It is true that Article 359 does not speak of
persons but only speaks of a right to move any court and also to
a period, or a part or whole of the territory.
But Article 359
empowers the President to make an order for the purpose mentioned
.therein and as the singular includes plural he can certain)) make
different orders. But the question is : can he make an order
or orders in respect of different groups of persons such as foreigners
·-and persons governed by the Defence of India Rules ~ It is true
that the scope of his order shall be confined to whole or a part of
the
territory of India and during certain periods. But there is
nothing in the Article which prevents the President frcm restricting
the scope of the order to a class of persons, provided the operation
of the order is confined to an area and to a period. The impugned
orders apply to the entire country and the fact that only the persons
who are affected by that order could not move the Court for the enforcement of their ri!!ht, cannot make themanythe less valid orders.
The learned counsel then contended that Art: 359( I) did not
authorise the President to make an order meting out discriminatory treatment to foreigners, and e,,n if it did, not the order
made in the instant case violated Art.
14 of the Constitution as
there was no nexus between the classification of foreigners and citiz.ens and the object for which the said ord,er was made.
Mr. Bindra, learned counsel contended that .Art. 359 conferred an absolute power or the President subject to the limitations found thereunder to make an order declaring that the right
to move any court for the enforcement of one or more of the rights
conferred by Part III should remain suspended, and, therefore,
any order made thereunder could not be declared void on the ground
that it infringed any of the fundamental rights suspended by the
said order. It was said that the contrary view would amount to
an argument in a circle.
There is a clear distinction between deprivation of fundamental
rights by force of a constitutional provision itself and such deprivation by an order made by the President in exercise of a power
conferred on him under a constitutional provision. A compariton of the provisions of Art. 358 and Art. 359 justifies this distinction.
Under Article 358, by the force of that Article itself, Article
19 is put out of the way. Article 359(1) does not operate by its
own force. The President has to make an order declaring that the
right to move a court in respect of a fundamental right or rights
in Part III is suspended. He can only make an order which is a
valid one. An order making an unjustified discrimination in
suspending the right to move a court under Art. 14 itself, will be
void at its inception. It is a still born order. It cannot be said
that this involves an argument in a circle. This argument ignores the distinction between the order and the effect of that order.
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GHULAM SARWAR v. UNION (Subba Rao, C.J.)
281
If the order dces not violate Art. 14, it can validily take away the
right to move the court to enforce Art, 14. So viewed, the order
of the President must satisfy the requirements of Art. 14. Mr.
Bindra relied upon the decision of this Court in Sree Mohan,
Chowdhury v. The Chief Commission, Union Territory of Tripura (1)
in support of his argument that the order of the President was
untrammelled by the provisions of Art. 14. The passage relied upon
reads : "It was also contended that the President's order of Novem-·
her 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 particular ordinance or Act of a legislature, the person moving
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 questioning the vires of the particular legislation. In
view of the President's order passed under the provisions of Article
359(1) of the Constitution, the petitio1."r has lost his locus standi
to move this Court during the period of emergency as already
pointed out. '(hat being so,
the petition is not maintainable".
This passage has nothing to do with the validity of the order made
under Art. 359(1). What this Court said was that, as under the
Ordinance the petitioner therein had no right to move the Court to
enforce his fundamental right, he had no locus standi to question the
validity of the Act, for, he could question the validity of the Act
only if he could move the Court in regard thereto. We, therefore,
hold that the validity; of the President's order issued under Art.
359(1) could be questioned if it infringed the provisions of Art. 14
of the Constitution.
The next question is whether it infrigned Article 14.
Mr
Pillai put his arguments in two ways : (1) The President has made
two orders"Under Art. 359(1); (i) GSR 1418 dated 30-10-1962 in
respect of foreigners; and (ii) GSR 164 dated 3-11-1962 in respect
of all, including foreigners. The terms of the order in regard to
foreigners are without
ariy limitations. But the order dated
3-11-1962 only affects persons who have been deprived of any of the
fundamental rights referred to in the order under the Defence of
India Ordinance, 1962 or lln)
rule or order made thereunder.
These two orders permit the authorities concerned at their discretion to rely upon the order which is more prejudicial or. drastic
in respect of same persons.
(2) The order of the President relating
to foreigners is discriminatory as the fact that a person is a foreigner
has no nexus to the object sought to be achieved, i.e., the security
of the State.
·
(I) (1964) 3 S.C.R., 441, 451.
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SUPREME COURT REPORTS
[1967] 2 S.C.R.
The formula underlying the doctri1w of classification has be-
. come ''' crystallised that it is unnecessary to refer to decisions.
The principle is stated thus : "The cl;i>sification must h~ found on
intclligihle differcntia which distinguishes persons or things that are
... grouped from those left out <lf the group and that the difierentia
must have rational relation to the object sought to be achieved
hy .the statute in question." What was the object of the order GSR
.... 1418 issued by the President on 30-10-1962. There was a grave
emergency. The Chinese attacked India and Pakistan was poised
for an
attack. There was a danger of internal sabotage. So,
it was
necessary to screen the foreigners, and to guard against
their ;icts of sabotage and espionage. It was, therefore, necessary
10 issue '1 special order wider in scope than that of GSR 164 dated
3-11-1962 which was
confined only to persons that had
been
·deprived of certain rights under the Defence of India Ordinance.
There was a greater danger from foreigners,
and,
therefore, a
more drastic order only could meet the requirements of national
security. Compared to foreigners, nationals,
with
some unfortunate exceptions, can be relied unon to support the country's
integrity and security. There is, therefore, a clear nexus between
the classification of foreigners and the citizens and the object sought
to be achieved thereby.
Nor can we :.ppreciate the argument that the making of two
orders, on" confined to foreigners and the other confined to all
persons, including foreign,rs, violates Art. 14. Though GSR 164
may also deprive foreigners, along with the citi1.ens, of their right
to move the Court in respect of their rights deprived under a particular Act, the scope of the said order (GSR 164) is not sufficient
to guard against the subversive activities of
foreigners. It is
confined only to rights deprived under the Defence of India Ordinance. GSR 1418 has a greater sweep and it takes in other rights.
Though there is some overlapping, the two categories of personsforeigners and citizens-offer different security and ot~ problems.
Both the orders are mainly intended to operate in different fields
and their scope is differ~nt. We, therefore, do not see any merit
in this contention also.
,
It is then argued that the President's order GSR 1276 dated
27-8-1965 has no retrospective effect and, therefore, the petitioner
is entitled to move the court'. GSR 1276 was issued on 27-8-1965
lllllending the earlier ord~r by including Art. 14 therein. After
· 27-8-1965, therefore, no foreigner has the right to move the Court
though his fundamental right under Art. 14 of the Constitution
·is
violated. In
that sense, the order is
not rctros1'ective
but prospective. It only operates on the right of a person
to
move
the Court. As the petitioner in the present case filed
his petition on 12th May, 1966, that is subsequent to the promulgation of the order, he has ceased to have any right to move this
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GHULAM SARWAR \', UNION (Bdchawat, J.)
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Court. The fact that he complained of his detention for a period
earlier to that date has. no hearing on the question of the maintainability of the petition. This contention has also no merits.
Lastly, it was contended that the order detaining him was
vitiated by ma/a fides. The argument of ma/a fides was put thus :
The petitioner was prosecuted and tried for an offence under the
Sea Customs Act. He was sentenced to 9 months imprisonment
and to fine.
He paid the fine and served his sentence. He was
arrested pending the criminal case. He was let on bail on 18-3-1965.
but before he left the jail he was detained under the Foreigners
Act. It was said that the detention was 'not for any purpose connected with the security of the State, but only with a view to make
investigation in respect of a case of conspiracy of smuggling gold
into India of which, it is alleged, the petitioner was one of the conspirators. As there are other effective provisions of the Code of
Criminal Procedure to conduct the said investigation, the argument
proceeded, the detention of the petitioner in the said circumstances
was an abuse of powers under the Foreigners Act. It was further
contended that s. 3 of the Foreigners Act was intended for regulating the entry and the exit of foreigners into and out of India,
that it had nothing to do with the investigation of cases, and that
therefore, the detention under that Act for the sole purpose of
investigation was ma/a fide. The order of detention dated 18th
September, 1964 reads: "In exercise of the powers conferred by
sub-section (I) read with clause (g) of sub-section (2) of section 3
of the Foreigners Act, 1946 (31 of 1946) the Central Government
hereby orders that Shri Ghulam Mohuddin a Pakistani ~tional
shall be arrested and detained until further orders." Clause (g)
enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can
be detained. If, as
the respondent says, the petitioner is
involved in a serious· case of conspiracy to smuggle gold and on
that account his detention in India was necessary to make further
investigation with regard to his conduct, we do not see why the
wide power conferred on the Central Government to detain him
under clause (g) could not be invoked. There is no merit in this
contention also.
Jn the result, the petition is dismissed.
Bachawat, J. The order of Khanna, J. dismissing the writ
petition filed by the petitioner in the Punjab High Court challen!!ing
the legality of the detention order passed by the Central
Government under s. 3(2)(g) of the Foreigners Act, 1946 and asking for
the issue of a writ of habeas corpus is not a
judgment, and does
not operate as res Judicata. That order does not operate as a bar
to the application under Art. 32 of the Constitution asking for the
issue of a writ of habeas corpus on the same facts. The petitioner
284
SUPREME COURT REPORTS
[ 1967] 2 S.-:.R•
has fundamental
right to move this Court under Art. 32 for the
issue of a writ of habeas corpus for the protection of his right of
liberty. The present petition must, therefore, be entertained and
examined on the merits.
Order .35, Rule 3 of the Supreme Court Rules provid•s that
a petition for a writ of lrobeas corpus under Art. 32 shall state
whether the petitioner has moved the H;gh Court concerned for
similar relief and if so, with what result. This rule is a salutarv
safeguard against an abusive use of a petition for the issue of a writ
of habeas corpus under Art. 32.
The previous dismissal of a petition for a writ of habeas corpus by a High Court is one of the matters
which this Court may take into consideration at the preliminary
hearing of the writ petition under Art. 32 in forming the opinion
whether ·a prima faciP case for granting the petition is made out,
and if on a consideration of all the materials the Court comes to
the conclusion that a prima facie case is not made out, the Court
may refuse to issue a rule nisi under O· 35. r. 4.
The petitioner did not previously move this Court for the
issue of a writ of habeas corpus challenging the legality of the order
of detention under s. 3(2)(g) of the Foreigners
Act.
He has,
therefore. the right to move this Court for the issue of the writ.
But he has not right to move this Court unC.:er ~rt.