MAKHAN SINGH versus STATE OF PUNJAB

Citation: [1964] 4 S.C.R. 797 · Decided: 02-09-1963 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed
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Judgment (excerpt)

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4 S.C.R. 
SUPREME COURT REPORTS 
MAK.HAN SINGH 
fl. 
STATE OF PUNJAB 
(AND CONNECTED APPEALS) 
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo, 
K. N. WANCHOO, M. HIDAYATULLAH, K. c. DAS GUPTA AND 
J. c. SHAH, JJ.) 
Constitution of India, 1950, Arts. 352 and 359-Proclamation 
of emergency-President's order restricting enforc:ment of fun-
damental ·rights-Detention under Defence of India Act (Ll of 
1962) and Defence of India Rules-Application for release .under 
s. 491, Code of Criminal Procedure (Act V of 1898)-Mazntazn. 
ability. 
The appellants were detained under r. 30(1) of the Defence 
of India Rules made by the Central Government under s. 3 of 
the Defence of India Ordinance, 1962. They applied to the Punjab 
and Bombay High Courts under s. 491(1)(b) of the Code of Crimi-
nal Prooedure and their case was that ss. 3(2)(15)(i) and 40 of the 
Defence of India Act, 1%2, and r. 30(l)(b) of the Defence of India 
Rules, which were continued under the Act, were unconstimtional 
and invalid inasmuch as they contravened their fundamental rights 
under Arts. 14, 21, 22(4), (5) and (7) of the Constitution and 
that, therefore, they should be set at liberty. The High Courts held 
that the Presidential Order which had been issued on November 
3, 1962, under Art. 359( I) of the Constitution, after a declaration 
of emergency under Art. 352, consequent on the Chinese invasion 
of India, barred their right to move the said petitions and dismissed 
them. 
These appeals raised two common questions in this Court,. 
( 1) what was the true scope and effect of the Presidential Order 
i<sucd under Art. 359(1), and (2) did the bar created by the 
Order operate in respect of the applications under s. 491(1)(b) 
of the Code. The Presidential Order was as follows:-
"G .S.~. 1464 .-In exercise of the powers conferred by cl. (I) 
of article 359 of the Constitution, the President hereby declares 
that the right of any person to move any court for the enforce-
ment of the right conferred by article 21 and article 22 of the 
Coi:istitution shall re:inain suspended for 
the period during 
which. the Proclamation of Emergency issued under clause (I) 
of article 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." 
"">' 
By a later amendment of th~ Order Art. 14 was incorporated 
into it. 
1'63 
1963 
Makhan Singh 
v. 
State of 
Puniab 
, . 
798 
SUPREME COURT REPORTS 
[1%4] 
Held: (per Gajcndragadkar, Sarkar, Wanchoo, Hidayatullah, 
Das Gupta and Shah, Jj.) that the proceedings taken by the appel-
lants in the High Courts under s. 491 ( l) (b) of the Code were 
hit by the Presidential Order and must be held to be incompetent. 
Article 359 of the-Constitution was not capable of t\VO inter-
pretations and it was, therefore not necessary to decide the contro-
versy raised by the parties as to whether that Article should be 
interpreted in favour of the President's power granted by it or the 
fundamental rights of the citizens. 
The King (At the Prosecution of Arthur Zadig) v. Halliday, 
[1917] A.C. 260, Liversidge v. Sir John Anderson, [1942] A.C. 206, 
Keshav Talpade v. The King Emperor, fl9431 F.C.R. 49, Nakkuda 
Ali v. M. F. De S. /ayaratne, [1951] A.C. 66 and King Emperor 
v. Vimalabai Deshpande, L.R. 73 I. A. 144, considered. 
The words 'any court' in Art. 359(1), construed in their plain 
grarmnatical meaning, n1ust mean any court of competent jurisdic-
tion including the Supreme Court and the 
High Courts before 
'vhich the rights specified in the Presidential Order can be enforc-
ed. It was not correct to say that the use of the words was neces· 
saty so :ls to include such other courts as might be empowered in 
terms 'of Art. 32(3). Nor was it correct to say that the words 
could not include a High Court as its power to issue a writ under 
A:rt. 226( l) was discretionary. 
In judging whether a particular proceeding fell within the 
purview of the Presidential Order the determining factor was not 
its forn1 nor the words in which the relief was couched but the sub-
stance of it. 
If in granting the relief the court had to consider 
whether any of the fundamental rights mentioned in the Presidential 
Order, had been contravened, the proceeding was within the Order, 
whether it was under Art. 32(1) or 226(1) of the Constitution. 
The right to move the court for writ of habeas corpus Under 
s. 4
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