IN THE SUPREME COURT OF INDIA Criminal Appeal Nos. 279, 355, 356, 380, 389, 1845-1849 and 1926 of 1975 and 3, 41 and 46 of 1976 Decided On: 28.04.1976 Appellants: Additional District Magistrate, Jabalpur Vs. Respondent: Shivakant Shukla AND Appellants: State of Uttar Pradesh Vs. Respondent: V.K.S. Chaudhary and Ors. AND Appellants: Union of India (UOI) Vs. Respondent: Atal Bihari Vajpayee and Ors. AND Appellants: Union of India (UOI) Vs. Respondent: Satya Sharma and Anr. AND Appellants: State of Karnataka and Ors. Vs. Respondent: N.K. Ganpaiah and Anr. AND Appellants: State of Maharashtra and Ors. Vs. Respondent: Subhas and Ors. AND Appellants: State of Rajasthan and Ors. Vs. Respondent: Milap Chand Kanungo and Ors. AND Appellants: Union of India (UOI) and Anr. Vs. Respondent: Shri Ram Dhan AND Appellants: Union of India (UOI) Vs. Respondent: Dr. Mrs. Rekha Awasthi Hon'ble Judges: A.N. Ray, C.J., H.R. Khanna, M.H. Beg, P.N. Bhagwati and Y.V. Chandrachud, JJ. Counsels: For Appellant/Petitioner/Plaintiff: M.C. Nihalani, Ram Punjwani, S.N. Kakkar, Niren De and V.P. Raman, Advs. For Respondents/Defendant: Shanti Bhushan, Soli Sorabjee, G.C. Dwivedi, S.S. Khanduja, Rama Joise and N.M. Ghatate, Advs. For Applicant-Interveners: Manek Ben, Maharaj Jai Singh, Surinder Mohan, Suraj Bhan Gupta, V.k. Singh Chowdhary and Deepchand Jain, Advs. Acts/Rules/Orders: Maintenance of Internal Security Act, 1971 - Sections 3, 3(1), 8, 16, 16A, 16A(9) and 18; Constitution of India - Articles 14, 19, 21, 22, 31, 31(1), 32, 133, 134, 136, 141, 226, 265, 352, 352(1) and (3), 358, 359, 359(1) and (1A) and 368; Indian Evidence Act - Sections 123, 124 and 162; Civil Procedure Code, 1908 - Sections 3 and 80 - Order XXXV, Rule 12; Indian Penal Code, 1860 - Sections 76, 79 and 342; Criminal Procedure Code, 1973 - Sections 56, 57, 167, 419 and 419(1)Constitution of India (Thirty-eighth Amendment) Act; Constitution of India (Thirty-ninth Amendment) Act; Presidential Order Cases Referred: Poona Municipal Corpn. v. D.N. Deodher, (1964) 8 SCR 178, AIR 1965 SC 555; Bharat Kala Bhandar v. Municipal Committee, (1965) 3 SCR 499, AIR 1966 SC 249, 59 ITR 73; Indore Municipality v. Niamatulla, (1969) 2 SCC 551; Joseph v. Joseph, (1966) 3 All ER 486; A.K. Gopalan v. State of Madras, 1950 SCR 88, AIR 1950 SC 27, 51 Cri LJ 1383; Mohd. Maqbool Damnoo v. State of J. & K., (1972) 1 SCC 536, 1972 SCC (Cri) 304; Fathima Beebi v. M.K. Ravindranathan, 1975 Cri LJ 1164 (Ker) Prior History: From the Judgment and Order dated September 1, 1975 of the Madhya Pradesh High Court in M.P No. 597 of 1975, From the Judgment and Order dated November 12, 1975 of the Allahabad High Court in W.P. Nos. 7428 and 6885 of 1975, From the Judgment and Order dated October 31, 1975 of the Delhi High Court in Criminal Writ No. 149 of 1975, From the Judgment and Order dated December 5/6/8, 1975 of the Bombay High Court in Criminal Applns. Nos. 171, 95, 96, 99, 109, 115, 116 and 168 of 1975, From the Judgment and Order dated November 28, 1975 of the Karnataka High Court in W.P. No. 4178 of 1975, From the Judgment and Order dated December 12, 1975 of the High Court of Rajasthan in D.B. Crl. Habeas Corpus Petition No. 1606 of 1975, From the Judgment and Order dated November 19, 1975 of the Delhi High Court in Criminal Writ No. 158 of 1975 and From the Judgment and Order dated October 31, 1975 of the Delhi High Court in Criminal Writ No. 128 of 1975. JUDGMENT Ray, C.J. 1. These appeals are by certificates in some cases and by leave in other cases. The State is the appellant. The respondents were petitioners in the High Courts. 2. The respondents filed applications in different High Courts for the issue of writ of habeas corpus. They challenged in some cases the validity of the Thirty-eighth and the Thirty-ninth Constitution Amendment Acts, the proclamation of emergency by the President under Article 352 of the Constitution made on June 25, 1975. They challenged the legality and validity of the orders of their detention in all the cases. 3. The State raised a preliminary objection that the Presidential Order dated June 27, 1975 made under Article 359 of the Constitution suspending the detenus' right to enforce any of the rights conferred by Articles 14, 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the respondents to invoke the jurisdiction of the High Court under Article 226 of the Constitutional and to ask for writs of habeas corpus. 4. The judgments are of the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. 5. The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14, 21 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of the Maintenance of Internal Security Act (hereinafter referred to as the Act), which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was made mala fide or was made on the basis of relevant materials by which the detaining authority could have been satisfied that the order was necessary. The High Courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statute which form the conditions precedent to the exercise of power under that statute as distinguished from merely procedural provisions or are mala fide or a not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary. 6. The High Court held that the High Courts could not go into the questions whether the proclamation of emergency was justified or whether the continuance thereof was mala fide. 7. The High Courts did not decide about the validity of the Thirty-eighth and the Thirty- ninth Constitution Amendment Acts. The Thirty-eight Constitution Amendment Act amended Articles 123, 213, 239B, 352, 356, 359 and 360. Broadly stated, the Thirty- eighth Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant articles final and conclusive and to be beyond any question in any court on any ground. As for Article 359 clause (1A) has been inserted by the Thirty- eighth Constitution Amendment Act. The Thirty-ninth Constitution Amendment Act amended Articles 71, 329, 329A and added entries after Entry 86 in the Ninth Schedule. 8. No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals. 9. It is appropriate to mention here that on December 3, 1971 in exercise of powers conferred by clause (1) of Articles 352 of the Constitution the President by proclamation declared that a grave emergency exists whereby the security of India is threatened by external aggression. 10. On June 25, 1975 the President in exercise of powers conferred by clause (1) of Articles 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances. 11. On June 27, 1975 in exercise of powers conferred by clause (1) of Articles 359 the President declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remains suspended for the period during which the proclamations of emergency made under clause (1) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are in force. The Presidential Order of June 27, 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause (1) of Article 359 of the Constitution. 12. It should be noted here that on January 8, 1976 there was a notification that in exercise of powers conferred by clause (1) of Article 359 of the Constitution the President declares that the right of any person to move any court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are in force. 13. The questions which fall for consideration are two. First, whether in view of the Presidential Orders dated June 27, 1975 and January 8, 1976 under clause (1) of Article 359 of the Constitution any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under the Act on the ground that the order or detention or the continued detention is for any reason not under or in compliance with the Act is maintainable.