LexADDITIONAL DISTRICT MAGISTRATE, JABALPUR versus S. S. SHUKLA ETC. ETC.
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A B c l> 172 ADDITIONAL DISTRICT MAGISTRATE, JABALPUR v. S. S. SHUKLA ETC. ETC. April 28, 1976 [A. N. RAY, C.1., H. R. KHANNA, M. H. BEG, P. N. BHAGWATI AND Y. v. CliANDRACHUD, JJ.] • Locus· standi to move habeas corpus petition under Article 226 of the > Constitution of lndia-Ef]ect of the l'residtntial Order dat<ti June 21 1915- \ Constitution of India, Articles 19, 21, 25, 226 and 359(1A) read wiih Main- tenance "f lnternal Security Act (Act 26 of 1971), 1971, «ctlon 3-Remedy .by way of writ petition to challenge the legality of an order of detention undtr r/Je Maintenance of lnttrnal Secun·ty Act is not open to a detenu during the en1ergency. Maintenance of Internal Security Act (Act 26 of 1971), 1971-Section 16A(9) is a rule of e1ddence and constitutionally valid-Not open to challenf!e on the ground of a1iv viola'ion of Part Ill of the Constitution In view of tlJe provisions of Article 359(1A). Maintenance of lnternal Security Act (Act 26 of 1971), 1971-Section 18 applies to all orders of detention, a valid piece of legislation and does not suffer from the vice of excessive delegation-Not open to challenge on the ground of the theory of basic structure. Constitution of India-Article 21 is the sole repos1°tory of rights ro life and-. liberty. ' l • E Constitution of India, Articles 358 and 3S9-Dlstlnctlon between. F G H Constitution of India, Articles 20 and 21-Dlf]erence between. Disclosure to court-Whether section 16A(9) of the Maintenanct of lntenJal Security Act (Act 26 of 1911), 1971 Is an exception and constitutes an e11croach- ment on the con.rtltutlonal jurisdiction of the High Court. Eclipse, theory of-Applicability to the enforcement of Fundamental Rights under Art. 359( I). Good return, theory of-Not applicable io the practlct! of lndlan courts. Obiter dictum-When a decision becomts an obittir dictum. Constitution of lndia, Article 256-Non·co1npllar1ce with Article 23'6 by the "T"• State-GrleYanct at the Instance of a prlva1e party not tnttrtalnabft by courts. Rule v/ Law-Constiuuion Itself is the rule of la1l--' and tht mandate. /udiclal review-Scope of, during t/le period of tmergc11cy. Constitution of India, Article 12-Whether "State" Includes Judiciary. Constitution of India-Article 372-Laws In force wh.iher Includes law• Included In Part l/l of the Con!!tltr1tlon-Scope of Article 372. .Maintenance of Internal Security Act (Act 26 of 1971), 1971-Stetlon 16 leaves open a remedy by way of a su/1 for damage> for wrongful conflnemeTll- Scope of Section. I~. ' AODL. DIST. MAGISTMT!l v. S. S. SHUKLA 173 Basic structure tlwory-Constitution of India. Article 368--Emergency provi· sions themselves are to be regarded as the basic structure of the Constitution. A > · Objects of the Maintenance of Internal Sec11rity Act (Act 26 of 1971), 1971 and the Amending Acts 31 of 1975 and 14 of 1976 thereto. Presidential Order under Art, 359( I) and Martial Law under Articles 23 and 73 of the Constitution-Distinction-Constitution of India Art. 359(1), 359(1A), 53 and 73 read with Art. 355-Scope of. 1 ' Constitution of India, Article 226-Extent of the powers of inquiry by the B High Courts in a pet/lion for writ of habeas corpus when once a prinia facie valid detention order is shown to exist. ~ Rule of law, Concept of is inapplicable to enrergeney provis/.ons since the ~ emergency provisions themselves contain the rule of law for such situations. Separation of powers-Principles of-Preventive detention being placed exc[u. sively within the control of the Executive authorities of the State for the duration C of the emergency, does not violate any principle of separation of powers. - Basic structure theory is nothing niore t11an a mode of construction of docu· • 1nents of the Constitution. · lurisdiction of courts under Articles 136 and 226-Nature of. Constitution of India, Articles 34 and 359, effect of-Whether powers of the courts to issue lvrit of habeas corpus during the period of Martial Law are taken away. J Rule of construction-Decisio11s of the Supreme Court and the other high ituilcial authorities-Constitution of lluiia, Article 141 explained. #"" Rights under s. 8 of the }.falntenance of Internal Security Act (Act 26 of D • 1971 ), 1911-Nature of, vis--a-vis rights under Constitution of India, Article 22(5)-Rights under Article 22(5) do not bar the enforcement of right 11nder ~s. E _,_ Refl.ection, theory of is not app
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