# M. HIDAYATULLAH, R. S. BACHAWAT AND v. RAMASWAMI, JJ.J - **Citation:** [1966] 2 S.C.R. 406 - **Court:** Supreme Court of India - **Decided:** 1965-10-27 - **Bench:** P. B. Gajendragadkar, K N. Wanchoo, M. Hidayatullah, R. S. Bachawat, V. Ramaswami - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-hidayatullah-r-s-bachawat-and-v-ramaswami-jj-j-3573 - **Pages:** 21 ## Headnote Defence of India Act and Rules, 1962, r. 30(l)(b)-/f invalid. Consti~ution of India, 1950, Arts 352 and 359( I )-Presidential Order suspending right to move Court for enforcement of fundamental rights-- Petition challenging validity of rule--Maintainability. The petitioners were members of Parliament. They were detained by orders passed by the Stat" Government under r. 30 ( 1) (b) of the Defenee of India Rules, 1962. They challenged the validity of the orders of detention on the grounds that: (i) rule 30(1) (b) was invalid because, a legislator cannot be detained so as to prevent him from exercising his constitutional rights as such legislator while the legislative chamber lo which he belongs is in session; and (ii) the impugned orders were passed mala fide as they were passed for the purpose of stifiing the' petitioners' political activities which were inconvenient to the State Government. It was also urged that the orders were passed by the Chief Minister of the State without satisfying himself of the necessity of detaining the petitioners merely beicause the Union Home Minisrer thought that the petitioners should be detained. The respondent raised a prefoninary objection that the petitions were incompetent in vlerw of the Order issued by the Pr .. ident of India under Art. 359(1), suspending the rights of any person to move any court for the enforcement of the lrights conferred by Arts. 14, 21 and 22 for the period during which the Proclamation.of Emergeacy issued under Art. 352 was in force, if such person had been deprived of any such rights under the Defence of India Act, 1962, Jor any rule or order made thereunder. HELD : (i) The last clause of the Presidential Order postulates that the Defence of India Act or any rule or orde by the President on the 3rd November, 1962. It will be recalled that on the 26th October, 1962, the President issued a Proclamation of Emergency in exercise of the Powers conferred on him by clause ( 1) of Art. 352 of the Constitution. This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. Thereafter, two E Orders were issued by the President, one on the 3rd November, 1962 and the other on the 11th November, 1962 in exercise of the powers conferred by clause ( 1) of Art. 359 of the Constitution. The first Order as amended by the later Order reads thus:- F G H "In exercise of the powers conferred by clause ( l) of Art. 359 of the Constitution, the President herebv declares that the right of any person to move any cou;t for the enforcement of the rights conferred by Arts. 14. 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (I) 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 any rule or order made thereunder". ' It may be added at this stage that Ordinance No. 4 of 1962 later became an Act called 'The Defence of India Act, 1962 (No. 51 of 196~) '. The argument is that the petitioners are admittedly detamed under Rule 30( I )(b) of the Defence of India Rules, 410 SUPREME COURT REPORTS [1966] 2 S.C.R. and so, the said Presidential Order is inevitably attracted; and A that means that the petitioners' right to move this Court under Art. 32 is suspended during the pendency of the Proclamation of Emergency. We are not impressed by this argument. In construing the effect of the Presidential Order, it is necessary to bear in mind B the general rule of construction that where an Order purports lo suspend the fundamental rights guaranteed to the citizens by the Constitution, the said Order must be strictly construed in favour of the citizens' fundamental rights. It will be noticed that the sweep of the Order is limited by its last clause. This Order can be invoked only in cases where persons have been deprived of their C rights under Arts. 14, 21 and 22 under the Defence of India Ordinance or any rule or order made there under. Jn other words, if the said fundamental rights of citizens are taken away otherwise than under the Defence of India Ordinance or rules or orders made thereunder, the Presidential Order will not come into operation. The other limitation is that the Presidential Order D will remain in operation only so long as the Proclamation of Emergency is in force. When these two conditions are satisfied, the citizen's right to move this Court for the enforcement of his rights conferred by Arts: 14, 21 and 22 is no doubt suspended; and that must mean that if the citizen wants to enforce those rights by challenging the validity of the order of his detention, his right to E move this Court would be suspended in so far as he seeks to enforce the said rights. But it is obvious that what the last clause of the Presidential Order postulates is that the Defence of India Ordinance or any rule or order made thereunder is valid. ltis true that during the F pendency of the Presidential Order, the validity of the Ordinance, rule or order made thereunder cannot be questioned on the ground that they contravene Arts. 14, 21 and 22; but this limitation w111 not preclude a citizen from challenging the validity of the Ordinance, rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validitv of the Ordinance, rule G or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. In this connection. we ought to add that the challenge to the Ordinance, rule or order made thereunder cannot also be raised on the ground of the contravention of Art. 19, because as soon as a Proclamation of Emergency is issued by the President, under Art. 358 the nrovisions of Art. 19 are automatically suspended. But the point "still remains that if a challenge H ~· • • • A B c • D E F G H A. NAMBIAR V. CHIEF SECRETARY (Gajendragadkar, C.J.) 411 is made to the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1), such a challenge is outside the purview of the Presidential Order; and if a petition is filed by a citizen under Art. 32 on the basis of such a challenge, it cannot be said to be barred, because such a challenge is not covered by the Presidential Order at all. In Makhan Singh Tarsikka v. The State of Punjab(') a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential Order with which we are concerned in the present writ petitions. In that case, it was held that the sweep of Art. 359 (1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights and that means the fundamental rights under Arts. 14, 19, 21 and 22. Even so, this Court took the precaution of pointing out that as a result of the issue of the Proclamation of Emergency and the Presidential Order, a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered niala fide. Similarly, it was pointed out that if a detenu contends that the operative provisions of the Defence of India Ordinance under which he is detained suffer from the vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential Order, because, in terms, it is not a plea which is relateable to the fundamental rights specified in the said order. Let us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who is detained under an order passed under Rule 30 (1 )(b), contends that the said Order has been passed by a delegate outside the authority conferred on him by the appropriate Government under s. 40 of the Defence of India Act, or it has been exercised inconsistently with the conditions prescribed in that behalf, a preliminary bar against the competance of the detenu's petition cannot be raised under the Presidential Order, because the last clause of the Presidential Order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Presi- (1) [!964] 4 S.C.R. 797. 412 SUPREME COURT REPORTS [1966] 2 S.C.R. dential Order, the bar created by it cannot be successfully invoked against a detenu. Therefore, our conclusion is that the learned Additional Solicitor-General is not justified in contending that the present petitions are incompetent under Art. 32 because of the Presidential Order. The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed, is invalid on grounds other than those based on Arts. 14, 19, 21 & 22; and if that plea is well-founded, the last clause of the Presidential Order is not satisfied and the bar created by it suspending the citizens' fundamental rights under Articles 14, 21 and 22 can• not be pressed into service. A B That takes us to the merits of Mr. Setalvad's contention that C Rule 30 ( 1 )(b) of the Defence of India Rules is invalid. The Rule in question has been framed under s. 3(2) (15) of the Defence of India Act, and in that sense it can be said, prima facie, to be justified by the said provision. But Mr. Setalvad argues that in so far as it. permits a Member of Parliament to be detained, it conD travenes· the Constitutional rights of Members of Parliament. According to Mr. Setalvad, a Member of Parliament, like a Member of any of the State Legislatures, has constitutional rights to function as such Member and to participate in the business of the House to which he belongs. He is entitled to attend every Session of Parliament, to take part in the debate, and to record his vote. E So long as a Member of Parliament is qualified to be such Member, no law can validly take away his right to function as such Member. The right to participate in the business of the legislative chamber to which he belongs, is described by Mr. Setalvad as his constitutional right, and he urges that this constitutional right of a legislator can be regarded as his fundamental right; and inasmuch as F the relevant Rule authorises the detention of a legislator preventing him from exercising such right, the Rule is invalid. In the alternative, Mr. Setalvad contends that the Rule should be treated as valid in regard to persons other than those who are Members of Legislatures, and in that sense, the part of it which touches the Members of Legislatures, should be severed from the part which G affects other citizens and the invalid part should be struck down. This argument again proceeds on the same basis that a legislator cannot be validly detained so as to prevent him from exercising his rights as such legislator while the legislative chamber to which he belongs is in session. On the same basis, Mr. Setalvad has urged another argument and suggested that we should so construe H the Rule as not to apply to legislators. It would be noticed that the common basis of all these alternative arguments is the assurnp- • • \.. • A. NAMBIAR v. CHIEF SECRETARY (Gajendragadkar, C.J.) 413A tion that legislators have certain constitutional rights which cannot be validly taken away by any statute or statutory rule. B c D E F G H In support of this argument, Mr. Setalvad has referred us to certain constitutional provisions. The first Article on which he relies is /\rt. 245(1). This Article provides that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. The argument is that the power to make laws is subject to the provisions of the Constitution and that being so, if there are any constitutional rights which the legislators can claim, no law can be validly passed to take away the said rights. Jn other words, just as the validity of any Jaw can be challenged on the ground that it contravenes the fundamental rights guaranteed by Art. 19, so can the validity of the impugned Rule be challenged on the ground that it contravenes the constitutional-cum-fundamental rights of the legislators. These constitutional rights, according to Mr. Setalvad, are to be found in several Articles of the Constitution. Mr. Setalvad's argument begins with Art. 79. This article deals with the constitution of Parliament; it provides that Parliament of the Union shalJ . consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 85 (i)provides, inter a/ia, that the President shall from time to time summon each House of Parliame.nt to mee.t at such time and place as he thinks fit. In accordance with the provisions of ·this article, when the President decides to call for the session of Parliament summons are issued under his directions asking all Members of Parliament to attend the ensuing -session. The petitioner Ananda Nambiar received such a summons issued on the 9th January, 1965 Article 86 ( i) gives the President the right to address either House of Parliament or both Houses assembled together; and it jlrovides that for that purpose, the President shall require the attendance of members. Mr. Setalvad argues that when a summons is issued by the President requiring the member to attend the ensuing session of Parliament, it is not only his right, but his constitutional obligation to attend the session and hear the speech of the President. Article lOO(i) refers to the voting in the Houses, and it provides that save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. Article 101 ( 4) provides that if for a 414 SUPREME COURT REPORTS [1966] 2 S.C.R. period of sixty days a member of either House of Parliament is, A without permission of the House, absent from all meetings thereof, the Hm1se may declare his seat vacant. It is common ground that if a member is detained or otherwise prevented from attending the se~sion of the House for personal reasons, as asks for permission of the House and usually, such permission is granted. Article 105 deals with the powers, privileges and immunities of B Parliament and its Members. Mr. Setalvad strongly relies on the provisions of sub-articles (1) & (2) of Art. 105 which deal with the freedom of speech inside the House of Parliament, and confer absolute immunity on the Members of Parliament in respect of their speeches and votes. If the order of detention prevents a Member of Parliament from attending the session of Parliament, C from participating in the debate and from giving his vote, that amomats to a violation of his constitutional rights; that, in substance, is Mr. Setalvad's argument. Mr. Setalvad also relied on the fact that this right continues D to vest in the Member of Parliament during the life of the Parliament unless he is disqualified under Art.102 or under s.7 (b) of the Representation of the People Act, 1951 (No. 43 of 1951). Article 84 deals with the qualification for membership of Parliament. With the provisions of this article we are not concerned in the present proceedings, because we are dealing with the rights E