LexDR. RAM MANOHAR LOHIA versus STATE OF BIHAR AND OTHERS
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A • • B c D E F G u DR. RAM MANOHAR LOHIA v . STAIE OF BIHAR AND OTHERS September 7, l 965 [A. K. SARKAR, M. HIDAYATULLAH, RAGHUBAR DAYAL, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.] Defence of India Rules, 1962, r. 30(1) (b)-"Public order" and "law and order", difference between-Scope of rule. Constitution of India, 1950, Art. 359(1)-President's Order suspending rights under A"ts. 21 and 22-Right to move Supreme Court under Art. 32-Efject on. Rule 30( 1) (b) of the Defence of India Rules, 1962, provided that a Stat~ Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial, inter alia to "public safety and maintenance of public order" it is necessary to do so~ order him to be detained. A Distric~ Magistrate to whom the power of the Government qf the State of Bihar had been delegated under s. 40(2) of the Defence of India Act, 1962, ordered the deten:ion of the petitioner under 'the rule. The order stated that the District Magistrate was satisfied, that with a view to prevent the petitioner from acting in any manner prejudicial to the "public safety and the maintenance of law and order," it was neces- sary to detain him. Prior to the making of the order the District Magis- trate had, however, recorded a note stating that having read lhe report of the Police Superintendent that the peti·tioner's being at large was prejudicial to "public safety and maintenance of public ordt!r'', he \vas satisfied that the petitioner should be detained under the rule. ~fhe peti- tioner moved this Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that : (i) though an order of detention to prevent acts prejudicial to public order may be justifiable an order to prevent acts prejudicial to law and order would not be justified by the rule; (ii) the order mentioned a notifiootion which did not contain the necessary delegation; (iii) the District Magis- trate acted beyond his jurisdiction by considering the danger not only in his district but in the entire State; and (iv) all the conditions mentioned in the rule must be cumulatively applied hefore the order of detention could be made. The respondent-State raised a preliminary obJection, that the President of India had made an Order under Art. 359(1) that the right of a person to move any court for the enforcement of the rights confe"ed by Arto. 21 and 22 shall remain suspended for the period during which the proclamation of emergency under Art. 352 was in force, if such person had been deprived of any such rights under the Defence of India Act or any rule made thereunder, and that therefore, this Court was prevented from entertaining the petition. HELD: (Per Full Court) : (i) The petition was maintainable. Per Sarkar, J. : The order of the President does not form a bar to all appJications for release from detention under the Act or the Ruies. Where a person was detained in violation of the mandatory provisions of the Defence of India Act his right to move the Court was not suspended. Since the petitioner contended that the order of detention was not justi- tied bv the Act or Rules and was therefore against the provisions of the Act, th-, petitioner was entitled to be heard. [716 G; 717 A-Bl 710 IUPUIO COURT REPORTS [1966] I i.C.& Per Hidayatullah and Bachawat, JJ. : The net result of the President'• A Order is to stop all claims to enforce rights ansing from Jaws olher than tho Dolence of India Act and the Rules, and the provisions of Arl. 22 at variance with the Defence of India Act and the Rules are of no avail. But the deprivauon must be a1 good fallh under the Defence of India Act or any rule or order made thereunder. The President's Order docs not say that even if a person is proi..cedc<l aga1n~t in b. each ot the l.)cfcnce of India Act or the Rules or ma/a fide he cannot move the Court to comploin that tho Act and the Rules under colour of which some action was taken, do B not warrant it. It follows, therefore, that this Court acting under Ari. 32 on a petition for th~ issue of a writ of habeas corpus must no~ allow breaches of lhe Deience of India Act or the Rules to go unquestivned, aa Art. 359 and the President's Order were not intended to condone an illegiti- mate enforcement o[ the D::fence of India Act. [731 B, E, F; 733 B-C) Per Raghubar Dayal, J, : This Court c
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