LexMOHD. YAQUB, ETC. versus THE STATE OF JAMMU & KASHMIR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
B c D E l' G H MOHD. Y AQUB, ETC. V. THE STATE OF JAMMU & KASHMIR November 10, 1967 (K. N. WANCHOO, C.J .. M. HIDAYATULLAH, J. C. SHAH, R. S. 8ACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.] c·a,,stit111ion of India Arts. J3l2). 14, 21, 22, 31, 106 anci 359(1)- H'hether an order 1nade 11nder Art. 359(1) is a '/a1v' lvitlrin lhe 1neauing of A;·t. 13(2)-1/ it can he rested against futt:lt:111ental righiS in Part 111 including the fundcunental right the enforce111ent of which it suspends- 11·het.h£'r only .\'uch funda111ental rights can he suspended -.rhich have nexus with ernergency-<ifter s11spension of Art. 22 whether grounds of deiention required to be furnished under Art. '22(5)--0rder of detention by Janun:i & Kas/11nir Go\•ern111cnt not in fon11 required by Art. 16t.-if valid. By a petition under Art. 32 of the Constitut:on, the petitioner challeng- ed an order of detention passed against him ur.der r. 30(1) (b) of the Dcicnce of India Rules, 1962. It was contended on his behalf, inter a/ir., (i) that the order of the President passed on November 3,. 1962 as amend- ed on November 11. 1962 under Art. 359(1) of the Constitution. suspend-. ing the right to move any court for the cnforo~ment o( the funda1nental rights confcrn.::J by Arts. 14, 21 an<l 22 if a:i.y perwn WdS dei>rived of such right during the period of the Emergency under the Defence of Jn<lia OnJinanc·e No. 4 of 1962 or any rule or order made thereunder, was a law within the meaning of Art. 13(2) of the Constitution and could therefore be tested against the fundamental rights in Pdlt III of the Cons- titution including the very fundamental right the enforcement of which is suspended; that @ly such fundamontal rights can be suspended which have n·oxus with the reasons which led to the Proclamation of EI'lcrgcr.cy, i.e .. the President can only suspend enforcement of funU:uneutal rights under Arts. 12 and 31 (2) by an order under Art. 359; that the order umicr Art. 359 in the present case was violative of Art. 14 as it enabled the executive to d~·:id:.\ in exercise of an ar.bitrary discretion, whether to detain a person under the more drastic provisions of the Defence of India Act 51 of J 962 ot the Preventive Det·ontion Act; (ii) that in view ·of the language of Art. 359 there should have been an express provision in the Defence of India Act and ·the Rules that tho enforcement Qf fundamental rights under Arts. 14i 21 and 22 was suspended· and in the absence of such a provision the order pass·'d under Art. 359 cannot stand in the way of the detention ord2r . being tested under Part III of the Constitution; (iii) that Art. 22(5) requires that grounds of detention should be furnish- ed to the detcnu and the President's order of November 1962 does not do away With this requirement which was not satisfied in the present cas·2; and (iv) that the order of detention was not in the form rcquir·~d by Art. 166 of the Constitution and the State Government therefore had to prove that it \\'as passed by the authority empow·ered to do so. Hehl : (by the Court) : The petitions must be dismissed. Per 111ajvrity : (i) An order passed under Art. 359(1) cannot be tested with the aid of Art. 13 ( 2) under that very fundamental right the enM forcrn1cnt of \\'hi ch it sui;pcnd..;. Even if an order under Art. 359 is :1i;s11mcd to h:.:- Jay..· in its \\'ide\I sense. it cannot he a Jaw 'vithin the mean- 228 SUPREME COURT. REPORTS [1968} 2 S.C.Jl ing of Art._ 13(2), for if that were so, the Article would be made nugatory. A Art. 359 gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the caforcem,nt of any of the fundamental rights conferred by Part IJI. Ther: is nothin~ in it whictl in any way limits the power of tho Pre,1ident and it is for him to decide the enforcement of which of the fundamental rights should be suspended during the Emergency. [2340-G; 232B-D] There is a b>'ic assumpJion in Art. 359 that it may be necessary for B the President to suspend the enforcement of any of the fundamental ri&hts ir; the interest of th: security of India and in the face of that basic assump- tion, there is no scope for enouiry into the question whether the funda- mental right the enforcement of which the President has suspended under Art. 35} has anything to do with the security of India which is threatened whether by war or external agg
Excerpt shown. Read the full judgment & AI analysis in Lexace.