# UNION OF INDIA ETC v. BHANUDAS KRISHNA GAWDE AND ORS. ETC

- **Citation:** [1977] 2 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 1977-01-25
- **Case number:** Criminal Appeals Nos. : 348-349, 350, 195-201, 170-176, & Crl. As. Nos. 181-182 of 1976
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-etc-v-bhanudas-krishna-gawde-and-ors-etc-7100
- **Pages:** 38

## Headnote

Conservation of Foreign Exchange and Prevention of Smuggling Activities
(MahlJirashtra Conditions of Detention) Order 1974,-Valid)ty of-Hig/z Courtlf could examine the vir!!_s of the Act-If could entertain a petition under Art.
\·
226 of the Constitution during Emergency.
The Conservation of Foreign Exchange and Prevention of Smuggling ActiA
B
vities (Maharashtra Conditions of Detention) Order, 1974 provides that secuC
rity prisoners shall not be a!lowed to supplement their diet even at their own
expense, restricts the security prisoner from receiving funds from relatives and
friends; restricts the number of meetings with .relativ_es and friends and medical
attention is allowed only through the Medical Officer of the prison in the same
way as a convicted criminal and so on.
In Writ Petitions field by the detenus under Arts. 226, and 227 of the Constitution, two High Courts have struck down the order as ulii-a vires.
On appeal it was contended by the State that the right of a person to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22 of the Constitution having been suspended by the Presidential Orders of
June 27, 1975 and January 8, 1976 issued under Art. -359(1) for the period
during whjch the Proclamation of Emergency was
in!orce, no person had
locus standi to move an application under Art. 226 for the 'issue of a writ to
enforce any right to personal liberty.
Allowing the appeals,
(per Ray, C.J. and Jaswant Singh, J.)
HELD : The Writ Petitions were not maintainable and the High Courts were
clearly in error in passing the impugned directions which were not warranted by
any relevant law including the law relating to preventive detention. [732 DJ
1. It is well settled by the decisions of this Court that if a
person was
deprived of his personal liberty not ull{ler the 'Defence of India Act, 1962 or
any rule or order made thereunder but in contravention thereof, his locu.r standi
to move any court for the enforcement of the rights conferred by Arts. 21 and
22 was not barred. On the other hand since the Presidential Orders dated June
27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their
applicability was not made dependent upon the fulfilment of any conditions precedent. They imposed a total or blanket ban on the enforcement of the fundamental rights conferred by Arts. 19, 21 and 22.
There is,_therefore, no room
for doubt that these Presidential Orders unconditionally suspended the enforceability of the right conferred upon any person; including a foreigner, to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22· of the Constitution. [742 E, G-H]
D
E
F
G
Additional District Magistrate, Jabalgμr v. Shiva Kant Shukla rt976] 2 S.C.C.
521-A.I.R. 1976 S.C. 1207, Makhan Singh v. State of Punjab [1964] 4 S.C.R.
H
797-A.I.R. 1964 S.C. 381, StQJle of Maharashtra v. Prabhakar Pandura11g Sanzgiri [1966] 1 S.C.R. 702-A.I.R. 1966 S.C. 424, Dr. Ram Manohar _Lohia v.
State of Bihar [1966] 1 S.C.R. 709-A.I.R. 1966 S.C. 740, A. K. Gopalan v.
The State of Madras [1950] S.C.R. 88-A.I.R. 1950 S.C. 27 and Kharak Singh
v. State of U.P. [1964] 1 S.C.R. 332-A.I.R. 1963 S.C. 1295, followed.
A
B
c
D
720
SUPREME COURT REPORTS
[1977] 2 S.C.R.
2. When a person has no locus standi to move any Court to challengi: his
orde~ • of deti;ntion, the High Court could not issue directions disn:garding the
provmoru ~f the Act, which is a self-contained code, and particularly ss. 5 and
12(6) which are mandatory.
[745 F-Hl .
Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730, followed .
. 3. As Articles. 19, 21 and 22 of the Constitution have· been suspe:nded
d]Jnng the operation of the Proclamation of Emergency, the Con:;ervation of
Foreign Exch;mge and Prevention of .Smuggling Activities Act and. the orders
made or passed thereunder were not open to challenge on the ground of their
being inconsistent with or repugnant to Arts. 14, 19, 21 and 22 of the Constitution in vi

## Text

_Characters 0–38,779 of 106,908. This is a partial read: ask again with offset=38779 for what follows._

719
UNION OF INDIA ETC.
v.
BHANUDAS KRISHNA GAWDE AND ORS. ETC.
January 25, 1977
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Conservation of Foreign Exchange and Prevention of Smuggling Activities
(MahlJirashtra Conditions of Detention) Order 1974,-Valid)ty of-Hig/z Courtlf could examine the vir!!_s of the Act-If could entertain a petition under Art.
\·
226 of the Constitution during Emergency.
The Conservation of Foreign Exchange and Prevention of Smuggling ActiA
B
vities (Maharashtra Conditions of Detention) Order, 1974 provides that secuC
rity prisoners shall not be a!lowed to supplement their diet even at their own
expense, restricts the security prisoner from receiving funds from relatives and
friends; restricts the number of meetings with .relativ_es and friends and medical
attention is allowed only through the Medical Officer of the prison in the same
way as a convicted criminal and so on.
In Writ Petitions field by the detenus under Arts. 226, and 227 of the Constitution, two High Courts have struck down the order as ulii-a vires.
On appeal it was contended by the State that the right of a person to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22 of the Constitution having been suspended by the Presidential Orders of
June 27, 1975 and January 8, 1976 issued under Art. -359(1) for the period
during whjch the Proclamation of Emergency was
in!orce, no person had
locus standi to move an application under Art. 226 for the 'issue of a writ to
enforce any right to personal liberty.
Allowing the appeals,
(per Ray, C.J. and Jaswant Singh, J.)
HELD : The Writ Petitions were not maintainable and the High Courts were
clearly in error in passing the impugned directions which were not warranted by
any relevant law including the law relating to preventive detention. [732 DJ
1. It is well settled by the decisions of this Court that if a
person was
deprived of his personal liberty not ull{ler the 'Defence of India Act, 1962 or
any rule or order made thereunder but in contravention thereof, his locu.r standi
to move any court for the enforcement of the rights conferred by Arts. 21 and
22 was not barred. On the other hand since the Presidential Orders dated June
27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their
applicability was not made dependent upon the fulfilment of any conditions precedent. They imposed a total or blanket ban on the enforcement of the fundamental rights conferred by Arts. 19, 21 and 22.
There is,_therefore, no room
for doubt that these Presidential Orders unconditionally suspended the enforceability of the right conferred upon any person; including a foreigner, to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22· of the Constitution. [742 E, G-H]
D
E
F
G
Additional District Magistrate, Jabalgμr v. Shiva Kant Shukla rt976] 2 S.C.C.
521-A.I.R. 1976 S.C. 1207, Makhan Singh v. State of Punjab [1964] 4 S.C.R.
H
797-A.I.R. 1964 S.C. 381, StQJle of Maharashtra v. Prabhakar Pandura11g Sanzgiri [1966] 1 S.C.R. 702-A.I.R. 1966 S.C. 424, Dr. Ram Manohar _Lohia v.
State of Bihar [1966] 1 S.C.R. 709-A.I.R. 1966 S.C. 740, A. K. Gopalan v.
The State of Madras [1950] S.C.R. 88-A.I.R. 1950 S.C. 27 and Kharak Singh
v. State of U.P. [1964] 1 S.C.R. 332-A.I.R. 1963 S.C. 1295, followed.
A
B
c
D
720
SUPREME COURT REPORTS
[1977] 2 S.C.R.
2. When a person has no locus standi to move any Court to challengi: his
orde~ • of deti;ntion, the High Court could not issue directions disn:garding the
provmoru ~f the Act, which is a self-contained code, and particularly ss. 5 and
12(6) which are mandatory.
[745 F-Hl .
Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730, followed .
. 3. As Articles. 19, 21 and 22 of the Constitution have· been suspe:nded
d]Jnng the operation of the Proclamation of Emergency, the Con:;ervation of
Foreign Exch;mge and Prevention of .Smuggling Activities Act and. the orders
made or passed thereunder were not open to challenge on the ground of their
being inconsistent with or repugnant to Arts. 14, 19, 21 and 22 of the Constitution in view of the Presidential Orders, dated June 27, 197 Sand January 8, 1976.
£742 G-Hl
1n the instant case the detenus covertly sought to enforce the vary rights
which were suspended. It was not open to the High Courts to strike down the
impugned clauses of the Maharashtra Coricffiions of Detention Order 1974.
4. The avowed object of the Act, as mainfest from its preamble, beini: the
conservation and augmentation of foreign exchange and the prevention of smuggling activi1 ies secretly organised and carried on, it is essential that contai;t of
the detenus with the outside world should. be reduced to the minimum.
It is
for the State Governments who are in full possession of all material facts and
not for the Courts who have neither the necessary knowledge of the facts nor the·
legal competence, to regulate conditions of detentiQn of persons, induding their
maintenance, interviews or communications with others.
[746 A-Cl
5. When a person is detailed, he can exercise only such privileges 1rn are
E
conferred on him by the order of detention or by the rules governing
his
p
detention.
State of Maharashtra v. Prabhakar Pandurang Sanzgiri [1966] 1 SCR ?02AIR · 1966 S.C. 424. referred to .
. • 6. The mere fact that a detenu is confined in a prison for tt,e sak(' of
administrative convenience does not entitle him to be treated as· a civil prisoner
or to be governed by the provisions of the Prisons Act. The view of the High
Courts to the contrary cannot be sustained.
[746 D-E]
..,J'.
Maqbwl Hussain v. The State of Bombay [1953] S.C.R. 730, followed.
7. The contention that the Presidential Orders did :hot bar the Court from
examining the vires of the detention orders because what was sou~ht to be en-
(1
forced was not a right of personal liberty but a redress against unn:asonabl eness
of the order was misconceived. The Presidential Orders imposed
a
blanket
ban on every judicial enquiry into the validity of an order depriving a person
of his personal liberty irrespective of whether it stems from the 'nitial order
directing his detention or from an order laying down the conditions
in. his
detention.
[743 A-El
H
Additional District Magistrate, Jabalpur v. Shil'a Kant Shukla [1!>76] 2 S.C.C.
521-A.I.R. 1976 S.C. 1207 followed.
(Per Beg. J.) Concurring.
......
•·
UNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.)
721
The High Courts, acting under Art. 226. have not been given the power to
A
interfere in any matter involving the assertion or enforcement of a. nght
to
ersonal freedom by the detenus during an Emergency, when exercise of such
~ower by the High Courts is suspended.
In times of EP1ergency the .reme.dy
for all the grievances of the detenus lies with the executive and admm1strative
authorities of the State. [7 54 B-C]
I. Shukla's case held that it was not the fundamental rights which were suspended by the Presidential Order under Art. 359 but the right to move any ·
Court for the enforcement of such right conferred by Part III as may be mentioned in the Order which is suspended for the duration of the Emergency. This
mean that it is the jurisdiction of Courts, to the extent fu which a petitioner
seeks to enforce the fundamental rights mentioned in the Presidenial Order,
which is suspended.
[749 G-H]
Additional District Magistrate, Jaba/pur v. S/;ivakant Shukla AIR 1976 SC
1283, applied.
B
A. K. Gopalan v. State of Madras, [1950] SCR 88, Kharak Singh v. State of
U.P., [1964) 1 SCR 332, I. C. Golakanath v. State of Punjab [1967] 2 SCR 762.
c
His Holiness Kesavananda Bharati Sripadagalavaru v. State, of Kera/a, [1973}
Supp. SCR 1 and Haradhan Saha v. The State of West Bengal & Ors., [1975] (1)
SCR 778-AIR 1974 SCR 154 referred to.
2. The term "any other purpose" in Art. 226 means purposes similar to those
D
for which one of the specified writs
would issue subject to certain exceptions
The writ of habeas corpus is wi;ler in scope than the enfrocement of fundamental rights which are available against the State only and its officers and
agents. But so far as mere directions or orders for any other purpose are concerned, the jurisdiction of High Courts does not extend to making orders against
private individuals. On the other hand, if an officer is d'ii1y empowered and has
passed a detention order, that order is not capable of being questioned under
Art. 226. All enquiry into the conditions of exercise of such power is barred
under the constitutional provisions during tlie emergency.
E
[750 D-E, H, 751 A, C-D]
3. In the instant case. the remedy sought was clearly covered by the Presi"
dential inhibition which operates against the High Courts.
The claims made
by the detenus w~r'? not matters which the High Court could .consider in
a
petition under Art. 226 of the Constitution.
[751 E-Fl
4. If the object of a proceeding is to enforce the fundamental right to personal freedom, a High Court's furisdiction under Art. 226 is barred during an
Emergency even if it involved adjudication on the question of vires of a rule
inade under enactments authorising preventive detention.
It is impossible to
invalidate a rule either intended for or used for regulating the conditions of
detention of a person detained under one of the Acts
authorising preventive
detention on the ground that the rule could only be nsed for persons in punitive
detention.
The attack on the validity of such a rule cannot succeed
on the
ground that the object of the rule should be shown to be preventive and not
punitive. [754 E-Fl
F
G
5. Shukla's case indicates that Arts. 19 and 21 emllrace every aspect of an
alleged infringement of the right of personal freedom by a State authority or
officer purporting to act under a law.
Even if the action violate~. a protection
conferred by Art. 21 upon citizens as well as non-citizens in ordinary times, the
result of the suspension, of the protection given by Art. 21 must necessarily be
that the protection cannot be enforced during an Emergency. If that be the
H
effect of the Presidential declaration under Art. 359, the Court cannot go behind
this declaration of law and the express letter of the law, as embodied in the
Constituiton and enforce what may be covered by the right to personal freedom
in ordinary times whether it parailes under the guise of natural law or 8tatutory
law or constitutional law.
[755 F-Hl
722
SUPREME COURT REPORTS
(1977] 2 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION: Criminal Appea.J N:>. 310 &
363 of 1976.
B
c
D
(From the Judgments and Orders dated the 1st September. 1975
of the Bombay High Court in Criminal Appln. No. 20/75) 2.nd
Criminal Appeals Nos. : 348-349, 350, 195-201, 170-176, & Crl.
As. Nos. 181-182 of 1976.
(Appeals by Special Leave Petitions from the Judgments and
Orders dated the 14th/18th July, 1975, 9th July, 1975, 3rd April,
1976, 13th March, 1976, and 19th March, 1975, of the Bombay High
Court in Criminal Appln. Nos. 794, 784/75, 833-839/76 and 614620/76 and 385-386/76 respectively and
Criminal Appeal No. 397 of 1976.
(Appeals by Special Leave from the Judgments and Orders dated
the 23rd March, 1976 and 6th April, 1976 of the Karna/t.aka High
Court in Writ Petitions Nos. 1454 and 2096/76 respectively) and
Criminal Appeal No. 397 of 1976.
(From the Judgment and Order dated the 3rd September, 1975 of
the Bombay High Court in Criminal Application No. 792/75) and
·•
E
CIVIL APPELLATE JURISDICTION : Civil Appal No. 573 of 1976.
F
·G
H
(Appeal by Special Leave from the Judgment and Order dated the
26th March, 1976 of the Bombay High Court in Criminal Appln. No.
31 of 1976) and
Special Leave Petitions (Civil) Nos. 2443-2444, 2864, 2865
&
"'
3061 of 1976.
\._.->' •
(From the Judgments & orders dated 8-4-76, 7-4-76, 12-4-76 &
8-4-76 of the Kamataka High Court in W.P. Nos. 2918/76, 6693/75,
1977, 2012 & 1295/76) and
Dy. Nos. 3002 & 3003 of 1976.
(From the Judgments and Orders dated the 8-4-1976 of the
Karnaitaka High Court in Writ Petitions Nos. 2355 and 1968 of 1976
respectively) and
Civil Appeals Nos. 1365-1367 of 1976.
(From the Judgment and Order dated the 23-3-1976 of the
Karnataka High Court in Writ Petitions Nos. 2293, 2477 and 2503/76
respectively) and
_ .(_
UNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.)
723
Oirvil Appeal No. 434 of 1976.
A
(From the Judgment and Order dated the 1-4-1976 of the
Kamataka High Court in IA No. IV in Writ Petition No. 4177
o~
1970).
Narayan Nettar for the appellants in Crl. A. 210 and CAs Nos.
-I
1365-1367/76 and Crl. A. 192 and for Petitioners in SLPs (Civil) Nos.
B
2443, 2444, 2864, 2865 and 3061/76 and R. 3 in CA 434/76.
V. P. Raman, Addi. Sol. Genl. (In Cr!. A 310,, 348, 397, 195 and
181/76), M/s. R. N. Sachthey and M. N. Shroff with him for the
Appellant in Cr!. A. 310, 348, 397, 349, 350, 363, 170-176, 181, 182
and 195-201 and C.A. 573/76 and 434/76 and for R. 3 in Crl. A.
310 and 348 and RR 2 and 4 in CrLA. 350/76.
r
Jail Petitioners for the Petitioners in Petn. Under Dy. No. 3002
and 3003/76.
H. M. Seervai (In Crl. A. Nos. 310, 340, 349, 363 and CA 573/
76), Ashok H. Desai, A. J, Rane. (In CA 573/76), J. R. Gagrat and
B. R. Agarwala for RR. 1 and 2 in Crl. A. 310, 363 and 397 and R. 1
in Crl. As. 348-349 and RR in CA 573/76.
A. K. Sen, R. H. Dhebar and B. V. Desai for R. 1 in Crl. A. No.
350/76.
V. M. Tarkunde, Ashok H. Desai and V. N. Ganpule for RR in
Cr!. A. 170 .to 176, 181, 182, 195-201/76.
H. M. Seervai, Dr. N.
M.
Ghatate, S.
Balakrishnan, S.
S.
Khanduja, (Miss) Rani Jethamalani and Alta/ Ahmed for R. l in CA
434/76.
c
D
E
The Judgment of A. N. Ray C.J. and Jaswant Singh, J. was deliF
vered by Jaswant Singh J., Beg, J. gave a separate opinion.
JASWANT SINGH, J.
Thes~. appeals, some of which have been preferred by certificates granted under Articles 133 and 134(1) (c) of ·
the Constitution and Others by Special leave granted by this Cour:t
under Article 136 of the Constitution, and which are directed against
various final and interim judgments and orders of the High Courts of
Bombay and Karnataka passed in writ petitions filed under Articles
:226 and 227 of the Constitution by or on behalf of certain persons
who are detained under orders of the appropriate authorities made
under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as 'the Act') complaining of certain constraints imposed on them under orders made under section 5 of the Act and
claiming facilities in excess of those provided in the said orders, shall
be disposed of by this judgment. A gist of the orders appealed against
12-l 12SCl/77.
G
H
A
l3
"C
D
F
G
•
724
SUPREME COURT REPORTS
ll977] 2 S.C.R.
and particulars of the pctlt10ns m which they have been passed ar~
given 111 the sub-joined table for facility of reference :.-
Sr .. No. oi appeal
No.
I. Crl. A. No.
310/1976
~· Cr!. A. No.
363/1976
3. Crl. A. No.
397/1976
1. Crl. A. No.
348/ 1976
Date of
the or<lcr
appi:aled
against
FIRST BATCH OF APPEALS
No. of the
application
in which the
order
appealed
against
has been
passed
Name of
the High
Court
which
passed
the order
Name oi
· the dctcnu
in whose
favour or
against
whom thl!
order
against
has been
passed.
Sub.lance
of the
l'fde:
appealed against
----·------·-- ------- --
4
J-9-1975
Crl. AppJkaBombay
tionNo.
20/1975
6
Krishna
Bud ha
Gawda
-Jo ..
J-9-19i) Cr!. ApplkaBombay
Ghamandi'..
Interim
{wder
dated
14-7-1975
rion No.
ram Kewalji
Gowani
?92/ 1975
SECO:-ID BATCH OF APPEALS
Cr/. Application No.
794/1975
Bombay
R:.imlal
Naril!l£'
Clauses
9(iii),
10,
12(iJ
•lnd (xi), 19, 20, 21, 23, 24
and 31 of the Con...<..en'ation of Foreign Exc:hansc
and Prevention ot Smug!·
ing Activities
(Maharashtra Conditions of Dcteu1ion) Order, 1974 f:>tru1.:k
down and directions issued
requiring:
the
detaining
authority
to
keep
the
the detenu
under detention as a 'civil prisoner'
within the tenns of
and
in all respects in conformity with the prori~ion~
ot the Prisons Act, 1894
~m<l further directing the
<lcta.ining
authority
tu
permit
the detenu
to
maintain
himself
by
receiving such fund~ uol
!lxcccding the sum (1f R:..
200}-
per month
1.1~ he
rilay desire to have iur
tbat purpose from any ol
his relatives or
friend~.
and to purchase or receive
tram
private sources nt
proper hours food, c.:loth·
i ng, bedding, and other
necessaries, including toiJd
requisites,
toilet SCJap.
cigarettes
and
tob.ac:cu,
subiect to examination and
to such rules, H an:y, a:-.
may be approved by the
luspector O:~al. as also
to permit the dctenu to
meet persons \dth whoru
he may desire to commu·
uicatc at proper times and
under i;ropcr restrkt!ons.
-doDirections issued tu
the
detaining
authority
tu
permit the detcnu (I) to
have his food from out·
side at his own cxpco~,
subject to routine check:
(2) to have one inttn iew
with his lcial advisers f'1r
two hours rn the rrc-..:m:er
Y,
f
UNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.)
725
- ----.2----------4--------------6-------7-----·---
-:!. Crl. A. No.
350/1976
t. CrL As. Nos.
195-201/1976
__ Cr!. As. Nn".
170-176/1976
Interim
order
d:tred
I). 7-l 975
Crl. Application No.
784/1975
Bombay
Yusuf
Abdulla
Patel
THiil!) BATCl-1 OF APPEALS
3-4-!~76 Crl. Applica.
!Jo111hay
lions Nos.
.S33-839,'197G
13-3-1 1)75
Crl. Applications
(\ t 4-620/1975
Bu111ba.1'
Ra tan
Singh
Gokaltlas
Rajda &
, others
Sm!.
Al1ilya
Pandui a1Jg
H:angankar
and others
of a Customs Officer, but
not within
his hearjng;
(3) to have one interview
per mon.th with any of the
Family
members, which
should be in accordance
with and subject to subclauses
(iii),
(vi),
(vii)
and (ix) of clause 12 of
the
Conservation
of
Foreign
Exchange
and
Prevention of Smuggling
Activities
(Maharashtra
Conditions of Detention)
Order, 1974.
Directions issued to the
detaining
authority ( ! )
to
permit
the
dctcnu
to have J1is food
from
outside at his own expense.
subject to routine check,
(2) to have the Uetcnu
examined at least
once
a week by ·Doctors at Sl.
George's
Hospital
and
to
permit
the ·dctcnu's
doctor
being present at
such
examination. (3) to
permit the dctenu to take
specially prescribed medicines
at his
own cost.
(4)
not
to remove the
dctcnu to
another juil
from
the Arthur Ro:.id
Prison, Bombay, without
giving at least 24 hours
notice in writing
(excluding
Sundays
and
other
holidays) tti his Attorneys,
(5) to permit the <.lctcnu
to
lwvc
one
interview
with
his
legal
advisers
for
two
hours
in
tilt.'
presence of
a
Customs
Officer,
but
not
within
his
hearing and (6) to
permit the detcnu to have
interview with relatives :1s
per clause 12(ii) of i'\taha·
rashtra
Conditions
of
Detcntiou
Order,
1974.
Diri.:...:tions issued to the
detaining
authority to
have the dctenus
taken
under
cu)_;tody
to
the
site nf the
meating of
the
Bombay
Municipal
Corporation
and enable
them to exercise
their
votes
~t
the
mayoral
election, it
~tnd
11·hcn
it takes.place.
While
rejecting
the
application
lor releas.c
on
parole
<lirnctions
issued
the
detaining
in authority to
have the
dctcnus
taken
under
custodv to vote at the
c!cctioi1
of
statutorv
Committees to
be hcl(!
on 15-'.l-J976 at 3 P. iv\'.
at the Bombay l\'1unicipJ/
Corporation,
llomb:iiy,
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
726
2
3. Crl As. Nos.
181-182/1976
4. Crl. As. Nos.
1365-67/1976
5. C.A. Nos.
434/1976
I. Cr!. A. No.
192/1976
SUPREME COUil.T REPQRTS
(1977) 2 S.C.R.
3
4
5
6
7
19-3-1976 Crl ApplicaBombay
lions Nos.
Ganesh
Prabhakar
Pradhan
and
Directions
issued to the
detaining
authority
to
have the detenus
taken
under
custody
to the
Maharashtra
Legislative
Council
Hall for
the
385-386/1976
23-3-1976 W.Ps. Nos.
2293. 2477,
2503/1976
1-4-1976 I.A. No. IV
W.P.No.
4177/1976
others
Karnataka
C.R.
Satish and
others
Kainataka
L.K.
Advani
limited
purpose of enabling
them to exercise
their right to vote at the
elections to the statutory
Committees on 30-3-1976.
Directions
issued to the
detaining
authority
to
have the detcnus taken
not later than 11 A.M.
on 24-3-1976 under police
esrort to the place where
the election of the President of the Town Municipal Council, Chikmaglur
was
to
be held
and
after they exercised their
right to vote to have
them brought back under
police escort to the jails
in which they were then
detained.
Directions
issued to the
detaining
authority
to
have the dctenu
taken
under
police
escort
to
New Delhi so as to enable
him to be in Rajya Sabha
on 3-4-1976 before 10.45
A.M. and to allow him
to take oath of affirmation
and thereafter to take his
seat in the Rajya
Sabha
and to have him brought
back under police escort
to
the Central
Jail
Bangalore on 3-4-1976 or
on
4-4-1976
whichever
date
is convenient
to
the detaining
authority
FOURTH BATCH OF APPEALS
23-3-1976 W.P. Nos.
1454/1973
Karnataka
Gurunath
Directions
issued to the
Kulkarni
detaining:
authority (1)
to have the detenu taken
under poJice escort on
or before 3-4-1976 to the
shops in Bellary to enable
them topurchasestationary
required for the examination and to the college
where detenu bad to get
the admission ticket to
the examination. (2) to
have the detenu taken on
each day of the examination
under
police
escort
from the jail at Bellary to
the
Examinalion
centre
and to see that he reached
such centre at least 20
minutes before the commencement of the examination and was brought
back after the day•s examination was over from
such centre to the jail
under police escort. Directions also issued to the jail
authorities
to ascertain
well
in
advance
the
programme of the cxami·
nation
which the detenu
had to take.
------------ ---
'
r_ .. >
-
UNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.)
727
2
4
6
A
2. Crl. A. No.
6-4-1976 W.P.No.
Karnataka
K.T.
Directions
issued to the
210/1976
2096/1976
Shivanna
detaining
authority
to
release
the
detenu
on
parole on the afternoon
of 10-4-1976. The detain-
-·
ing authority also directed
to arrange to have the
detcnu either taken under
police escort to his home
at Novavirakare,
Tiptur
B
Talu,
starting
from
Bangalore on the afternoon of 10-4-1976 and
•
to have him brought back
under poJice escort from
his home to the Central
:;\
Jai1,
Bangalore,
starting
from Honavinskerc on the
afternoon of
12-4-1976
OR ielease
the dctenu
c
,.
at the gate of the Central
Jail,
Bangalore
on
his
executing
a
self
bond
for Rs. 6,000/-
undertaking to surrender himself to the jail authorities
on 12-4-1976
not
later
than 6 P.M. and not to
take part in
political
activities or other activities
detrimental to the security
of the State during the
D
period he remained
on
parole. The police, however
given the liberty
to keep a watch around
the detenu's house and
to follow his movements
outside his house during
the period he continued
on parole.
3.. S.L.P.
8·4-1976 W.P. No.
Karnataka
K.A.
Directions
issued to the
(Civil) No~
2918/1972
Nagaraj
detaining
authority
( l)
E
2443/76
to release the dctenu on
parole, (2) to have the
detcnu taken on the evening
of
9-4-1976
under
po1ice escort to his house
and brou,ht back to the
Central
ail,
Bangalore,
under police escort on the
evening of 10-4-1976; and
(3) again have the detenu
<
taken on the evening of
'
14-4-1976 under
police
F
escort to his house and
"'-
brought back under police
escort
to
the
Central
Jail,
Bqngalore, on the
evening of 15-4-1976. The
police, however, given the
liberty to keep a watch
around the house of the
~
detenu and
to
fo11ow
his movements during the
'
period he remained
on
parole.
G
4. S.L.P. (Civil)
8-4-1976 W.P.No.
Karnataka
P.B. SatyaDirections issued to the
Ne. 2444/1976
6693/1975
narayana
detaining
authority
to
Rao
release
the
detenu
on
parole on 14-4-1976 and
to have him taken under
police escort to his home
and brought back under
police
escort to the jail
on
the afternoon
of
16-4-1976.
The police,
however. given the liberty
to keep a watch around
H
the house of the detenu
and to watch his move-
~
ment outside his house during bis release on parole.
728
SUPRE;>.fE COURT REPORTS
[1977] 2 S.C.R-
,\
-----------------
2
4
··------------
5. S.L.P. (Civil)
7-4-1976 \V.P. No.
Karntaka
1\1. S.inDirections
issued to the
No. 2864/1976
1977jJ':J76
jeeva Gatti
detaining Juthority either
(i) to arrange the detcnu
taken under police escort
to his m1tivc place,
Bangalore,
starting
from
Bangalore on 8-4-1976 and
brought
back
under
,_
B
police escort to the Central
.Jail Bangalore on 14-4-1976·
1
and
(ii) to relcasc the
dctcnu
at the gate of the Central
Jail,
l:Jangalorc,
on
the
morning of 8-4-1976
on
his executing a self-bond
~
of Rs. 5,000/- undertaking
to surrender himself
to
the jail authorjties
nnt
'(
c
later
than
5 P.M.
on
..
15-4-1976 and not to taki:
part in any political acti-
.. ,
vity
or
other
activity
detrimental to the security
of the State.
The police, however, giVCli
foe
liberty
to
keep
a
watch around the house
houses in which the dctcnu
D
stayed and to follow his
movements
outside
the
house or houses during
the period
he remained
on parole.
'
"·
S.L.P. (Civil)
8-4-1976 \V.P. No.
Karnataka
v.s.
Directions issued to the
No. 2865/1976
2012/197(,
Acharya
detaining authority either
to arrange to have the·
detenu taken under police
escort from Central Jail,
Bangalore,
to
Udupi
E
starting froin Bangalore on
the morning of 13-4-1976
and to have him brought
back under police escort
from .Udupi statiing there
frorn on the morning ot
21-4-1976 or release the
detenu at the gate of the
Central Jail, Bangalore, on.
his Cl'.ecuting a self-bond
for Rs. 5,000/- undertaking
not to take part in any
,
F
political
activity
or
in
....
any activity
detrimental
to the security of
the
-
State <luriag the period
he remained on parole a~
to surrender himself
to
lhc Jail authorities
not
later than
6 P.M.
on
21-4-1976.
The
police
however, given the liberty
to keep a watch over the
G
dctenu and to follow him
movcmcnL"
durinu
the
period
he
rcmaillcd
on
parole.
7. S.L.P. (Civil)
8-4-1976
\V.P. No.
Karnataka
c.v.
Directions issue<l
lo
th~
No. 3061/1976
1295/197(·
Shankar
detaining authority either
Rao
(1)
to arrange
to ha,·e
Jadlrnv
the dctenu taken too his
home at Nandya under
police escort starting from
Bangalore on the evening
H
of 10-4-1976 rind to hal-c
him brought back under
police escort to the Central
fail, Bengal starting from
Nandya on
the morning
of 13-4-1977.
··--·----- ----· -------- -------------
......
'""'- '
--
UNION V. BHANUDAS K. GAWDE (Jaswant Singh, .T.)
729
!. Dy. No.
3002/1976
2. Dy. No.
3003/1976
I. C.A. No.
349/1976
2. C.A.No.
573/1976
FIFTH BATCH OF APPEALS
S-4-1976 W.P. No.
2355/ 1976
8-4-1976 \V.P. No.
1968/1976
Karnataka
D.J.
Karnataka
Shivaram
Hanumant
Gururao
Inamdar
SIXHI llATCH OF APPEALS
18-7-1975 Crl. Application No.
794/1975
20-3-1976 Crl. Applic'1tion No.
31/1976
Rombay
Bombay
Ram la I
Na rang
Prabhudas
Tribhovandas
or
(2)
to
release
him .
at the gate of the Central
Jail,
Bangalore
on the
evening of 10-4-1976 on
his executing a self-bond
for Rs. 5,000/- undertaking
to surrender himself to
the Jail
authorities not
later than 4 P. M. on
12-4-1976
and
not
to
take part in any political
activity or other activjty
,detrimental to the security
of the State during t11c
period of bis release on
parole. The police, however,
given the liberty to keep
a
watch
around
the
detenu's
housoe
and
to
follow
his
movements outside his house
during the period of his
release on parole.
Prayer of the detcnu to
allow him to be released
on parole
to enable him
to take the final LL.B.-
examination
rejected
.in
view of the order~ made
by this Court i.e.
the
Supreme Court in High
Court \V.P. No. 1454/1976
Prayer of the detenu to
allow him to be released
on parole to enable him
to take the Second Year
LL.B. examination rejected
in view
of the orders
made by this Court on
in High Conrt W.P. No.
1454/1976.
Dfrections issued to the
detaining authority not to
remove
the
deteno
till
further order to another
jail
outside
the
State
without giving at least 3
hours' notice in writing
(excluding
Sunday
and
holidays) to the detenu
attorneys.
Directions
issued
to
the
detaining
authority
to
detain
the
(letenu
in
such
prison
where the detenn would
have the benefit of the
Company of other women
detanus
as
also
other
facilities under the rules.
Clauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 & 31 of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter
referred to as "the Maharashtra Conditions of Detention Order, 1974")
which have been strnck down by the High Court of Bombay read as
under:-·
"9.
A
B
c
D
E
F
G
H
A
B
c
D
730
SUPREME COURT REPORTS
[1977] 2 S.C.R.
(iii) Security prisoners shall not be allowed to supplement their diet even at their own expense. Any security prisoner who wishes to supplement his diet on medical grounds,
. may apply to the Commissioner or the Superintendent, ai
the case may ~· The Commissioner or the Superintendent
shall get him examined by a Medical Officer attached to the
place of detention who may order such modification of, or
addition to, his diet, as he may consider necessary on medical grounds. ,
10.
Supply of funds :-(i) A security prisoner may, with the
previous sanction of the detaining authority, receive from a
specified relative or friend at intervals of not less than a
month, funds not exceeding Rs. 30/- per month and may
spend these funds or a similar sum from his own private
funds on such objects and in such manner as may be pennissible under the rules, in case in which for want of funds any
security prisoners are compelled to do without small
amenities which their fellow prisoners enjoy, such amenities
may, if considered absolutely necessary by the Commissioner
.or the Superintendent be supplied . to them at Government
costs.
•
(ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of
the security prisoners concerned.
(iii) Amounts in excess of those prescribed in subclause (i) may be received by the Commissioner or the
E
Superintendent on behaJf of security prisoners, but they shall
not be spent in any month beyond the limits laid down in
the said sub-clause.
F
G
H
12.
(ii) The number of interviews which a security prisoner
may be permitted to have shall not ordinarily exceed one
per month.
(xi) In addition to the interviews permissible under the
preceding provisions of this clause, a security prisoner may,
with the permission of the detaining authority, be granted
not more than two special interviews, for the settlement of
his business or professional affairs, such interviews
shall
ordinarily take place within a period not exceeding two
months from the date of detention of the security prisoner
concerned and shall be conducted in accordance with the
provisions of this clause as regards place, duration and conditions of the interview, and the proceedings shall be strictly
confined to the objects for which the interview is granted.
19.
Medical attendance :-(i) The Superintendent of the
Hospital or the Civil Surgeon, as the case may be, shall depute a medical officer to visit each security prisoner detained
,
UNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.)
731
in a police lock-up and repo~. of his P.hysical condition. Th~
said Medical Officer shall visit the pnsoner at least o_nce a
week and more often if the Superintendent of the Hospital or
the Civil Surgeon or the Commissione~ as th~ ~ase may be
thinks fit, and submit the report on his condition to the
Commissioner or the detaining authority, after the first day
of each month and at any other time he considers necessary.
(ii) Security prisoner detained in a jail or sub-jail s~all
in the event of iJ.lness, be treated in the same way as convicted criminal prisoner or treated under the rules tnade under
the Prisons Act, 1894.
20.
Toilet :-(i) Every security prisoner shall . be supplied
with neam or babul stick at Government expense.
(ii) Every security prisoner shall be supplied with one
cake of jail made toilet soap per month for bathing at
Government expense. The weight of such cake shall be 113
grams approximately and if jail made soap is not available
in any medium quality, toilet soap manufactured in India :
and available locally shall be supplied.
·•
21.
Service of barbers etc. :-(i) A security prisoner shall
not be permitted to have shaving equipment of his own.
(ii) Every security prisoner shall be allowed to have the
services of the jail barber once a week.
23.
Smoking and
tobacco:-Except cigarettes
or
bidies
and chewing tobacco, which are available at the jail canteen,
no other facilitie11 to smoke or chew tobacco shall be permitted.
24.
Games :--Security prisoners shall not be permitted to
play indoor game~ like cards or to play chess, draughts and
carrom.
31.
Power to withhold any concessions or facilities :-The
State Government may, by general or special order, withhold any of the concessions or facilities
provided by or
under any of the provisions of this order in respect of any
security prisoner or class of security prisoner, and for such
period or periods, as the State Government may; from time
to time specify.
Appearing on behalf of the Union of India and the States
of
Maharashtra and Karnataka, the learned Additional Solicitor General
has, while very fairly stating that though the appropriate Government
may have no objection to the issue of special orders permitting the
detenu~ to receive or ,Purchase toilet requisites, toilet soap and to consult pnva'.e .doctors lil case of ~enuine necessity if an application is
made to 1t m that behalf, submitted that the right of any person to
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
--~-
. "
732
SUPREME COURT REPORTS
[1977] 2 S.C.R.
move any court for tbe enforcement of the rights conferred by Article
21 (which is the sole repository of the right to life and personal
liberty) and Articles 14, 19 and 22 of tbc Constitution having been
suspended by virtue of the Presidential Orders dated June 27, 1975
and January 8, 1976 issued under clause (1) of Article 359 of the
Constitution (which arc absolute in tenns) for the period during which
the proclamation of emergency made on June 25, 1975 under clause
(1) of Article 352 of the Constitution is in force, no person has
a
locus standi to move any application under Article 226 or Article 227
of the Constitution for issue of a writ, order or direction to enforce
any right to personal liberty. He has further urged that since it is for
the appropriate Government to specify the place of a detenu's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others
with a view to prevent his contact with the outside work! and since
what was sought to be enforced in the instant cases by mea,ns of the
applications filed by or on behalf of t11e dctenus under Article 226 and
227 of ilie Constitution in the aforesaid High Courts was noiliing but
various facts of personal liberty under Articles 19, 21 and 22 of the
Constitution, the applications were not maintainable and the High
Courts were not competent to deal with them and to either strike down
the aforesaid clauses of the Maharashtra Conditions
of Detention
Order, 197 4 or to issue the aforesaid directions
to the detaining
authorities.
Mr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned
counsel for the detenus have, on the other hand, emphasized :
( 1) that preventive detention docs not stand on
the
same
footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for
offences against the law can also be preventively detained
they cannot be punitively treated;
( 2) that considerations relevant for applications seeking relief
of release by habeas corpus are not relevant to cases in
which conditions of detention fall for consideration;
( 3) iliat the principle of legality and the doctrine of ultra vires
are not abrogated even during the times of emergency ancl
the exercise of power under section 5. of the Act must
have a reasonable nexus with the purpose for which the
power is conferred;
(4) that if according to the majority judgment in Additional
District Magistrate, Jabalpur v. Shiva Kant Shukla( 1)
even habeas corpus could issue in cases where the order
is not duly authenticated then the conditions of detention
can certainly be scrutinized and relief can be granted if
those conditions ~re found to be iJ.legal or ultra vires;
(J) [1976] 2 S.C.C. 521 'c'i\.l.R. 1976 S.C. 1207.~[1976] Supp. S.C.R. 172.
,_
I "-,
'
,
..
,.
,....
• )..
.,.__/
J
•
:
UNION v. BIIANUDAS K. GAWDE (Jaswant Singh, /.)
733
(5) that the aforesaid clauses of the Maharashtra Conditions
of Detention Order, 1974, being ultra vires and. violative
of the principles of reasonableness and legality have right-
,
ly have been struck down by the High Court of Bombay;
(6) that a curtain cannot be drawn round the dctcnu and
while he can be cut o!I from undesirable contacts, he cannot be cut o!I from unobjectionable contacts;
(7) that if the place of detention mentioned in a detention
order is a prison, then the detenu would be governed by
the Prisons Act but not if the detcnu is lodged elsewhere;
(8) that the dctenus' grievances are not 'echoes' of Article 19
of the Constitution but are .the echoes of the 'totality' or
law;
(9) that it is not right to say that what is not contained in
Article 19 of the Constitution is contained in Article 21
of the Constitution as this submission ignores Articles 15,
25 and 26 of the Constitution which arc applicable even
to non-citizens .
The learned Additional Solicitor General has, in his rejoinder,
· contended that while total rele<1sc is of course different from regulating
conditions of detention, the former not being available by virtue of the
Presidential Orders dated 27th June, 1975 and January 8, 1976 issued
under Article 359(1) of the Constitution which are unconditional even
conditions of detention cannot be enforced by moving a court during
the period of emergency and that the contention based upon the principles of legality and reasonables and doctrine of ultra vire$ is misconceived.
The Additional Solicitor General has further submitted that
legality has to be understood as meaning the authority of ·1aw and it
so understood, a person detained in accordance with the conditions
framed under section 5 of the Act cannot complain that the conditions
are illegal or ultra vires, broader challenges based on fundamental
rights. not being available; that the principle of reasonableness and the
doctrine of ultra 1·ires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague
and indeterminate philosophical theories like the totality of l:iw;. that
as the line of demarcation between preventive and punitive detention
which is easily perceivable at the.