SREE MOHAN CHOWDHURY versus THE CHIEF COMMISSIONER, UNION TERRITORY OF TRIPURA

Citation: [1964] 3 S.C.R. 442 · Decided: 29-04-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed
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Judgment (excerpt)

/ffJ 
April 29. 
442 StJPRENIE cOtJR. T REPORTS (1964] vot. 
SREE MOHAN CHOWDHURY 
"· 
THE CHIEF COMMISSIONER, UNION 
TERRITORY OF TRIPURA 
(B. P. SINHA c. J., K. SUBBA RAO, J. c. SHAH, 
RAGHUBAR DAYAL and J. R. MUDHOLKAR JJ.) 
Fu'l!damtntal 
Right8-Proclamation 
of E-rgency-
Detention-Right to move Supreme Oourt-Susptmion of-
Oomtitution of India, Aris. 21, 22 and 32-Preaidenl'a Order 
·dt. November 3, 1962-General Clauses Act, 1897 (111 of 1897), 
•· 8-Defence of India Ordinance, 1962 (4 of .1962)-Defenet of 
India Act! 1962 (lil of 1962), s. 48. 
On Or.tober 26, 1962, the President issued a proclamation 
of Emergency which was later approved by both houses of 
Parliament, On the same day he promulgated the Defence of 
India' Ordinance, 1962, and under s. 3 thereof the Central 
Government promulgated the Defence of India Rules, 1962. 
On November 3, 1962, the President issued an Order under Art; 
359 (I) of the Constitution suspendiag the right of any person 
to move any Court for the enforcement of the rights conferred 
by Arts. 21 and 22 during the proclamation of emergency "if 
such person has been deprived of any such rights under the 
Defence of India Ordinance,1962 or imy rule made thereunder". 
On November 20, 1962, the respondent made an order under 
r. 30 of the Defence of India Rules for the detention of the 
petmoner. 
The petitioner moved the Supreme Court under 
Art. 32, challenging his detention. The respondent contended 
that the petition was not maintainable. The petitioner conten-
'ded that the right to move the Supreme Court under Art. 32 
being a guaranteed right could not be, and was not, suspended 
and that the President's Order suspending the right was in-
efl'cctive as it was dependent on the continued existence of the 
Ordinance but the Ordinance hacl been repealed by the Defence 
oflndia Act, 1962. 
Hild that the petition was not maintainable. Though 
the power of the Supreme Court to issue a writ in the nature 
of habeaa corpus was not touched, the right of the petitioner to 
.move the court for such a writ was suspended by the President's 
3 S.C:.R. 
SUPRBNIE cotiR T REPOR. ts 
443 
Order. The Order did not suspend all the rights of a citizen to 
move the Supreme Court but only the rights under Arts. 21 
and 22. 
Since his right to 
the Court was suspended he 
was not entitled to challenge the vircs of the Act and of the 
Rules. 
The repeal of the Ordinance by the Defence of India 
Act, 1962, did not make the President's Order ineft'ective. By 
virtue of the saving clause in s. 48 of the Act "any rules made, 
anything done or any action taken" under the Ordinance shall 
be deemed to hi.ve been made, done or taken under the Act. 
Further, the reference to the .Ordinance in the 
Order 
was, by virtue of s. 8 of the General Clauses Act, to be read as 
a reference to the Act. 
The word "instrument" in s. 8 
included the President's Order. 
ORIGINAL JURISDICTION : Habeas Corpus Peti· 
tion No. 15 of 1963. 
Hebeas Corpus Petition under Art. 32 of the 
Constitution of India. 
R. K. Garg, for the petitioner. 
S. V. Gupta, Additional Solicitor-General of 
India, D. R. Prem, R. H. Dhebar and 
R. N. 
Saehthey, for the respondent. 
S. C. Agarwal, R. K. Garg, M. K. Rama-
murthi and D. P. Singh, for the intervener. 
1963. April 29. The Judgment of the Court 
was delivered by 
AtM1.n Chwuiltury 
v. 
Chitf Commissioner, 
Unicn T mit2 ry 
•f TriJIUr• 
SINHA C. J.-On 
October 26, 1962, the 
·"i•h• C. J, 
President having been satisfied that a grave national 
emergency exists. whereby the security of India or 
any part of the territory thereof is threatened by the 
Chinese aggression, issued a Proclamation declaring 
the Emergency, under Art. 352 of the Constitution. 
That declaration of emergency was laid before 
both Houses of Parliament on November 8,1962, and 
was approved by the Rajya Sabha on November 13, 
1962, and by the Lok Sabha on November 14, 1962 •. 
196'3 
Mohan Chowdhury 
•• 
Chief CommissiotUT, 
Union Ten it or y 
of TrifJUra 
Sinho C. J. 
444 
SUPREME COURT REPORTS (1964] VOL. 
After the Proclamation of Emergency, as Parliament 
was not in session, and as the President was satisfied 
that circumstances existed which rendered it necessary 
for him to take immediate action for .exercise of the 
powers conferred by cl. (1) of Art. 123 of the 
Constitution, he promulgated the Defence of India 
Ordinance (IV of 1962) on the same date-October 
26, l 9o2. By s. 3 of the Ordinance, the Central 
Gov
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