LexUNION OF INDIA ETC. versus BHANUDAS KRISHNA GAWDE AND ORS. ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
719
UNION OF INDIA ETC.
v.
BHANUDAS KRISHNA GAWDE AND ORS. ETC.
January 25, 1977
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Conservation of Foreign Exchange and Prevention of Smuggling Activities
(MahlJirashtra Conditions of Detention) Order 1974,-Valid)ty of-Hig/z Court-
lf could examine the vir!!_s of the Act-If could entertain a petition under Art.
\·
226 of the Constitution during Emergency.
The Conservation of Foreign Exchange and Prevention of Smuggling Acti-
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vities (Maharashtra Conditions of Detention) Order, 1974 provides that secu-
C
rity prisoners shall not be a!lowed to supplement their diet even at their own
expense, restricts the security prisoner from receiving funds from relatives and
friends; restricts the number of meetings with .relativ_es and friends and medical
attention is allowed only through the Medical Officer of the prison in the same
way as a convicted criminal and so on.
In Writ Petitions field by the detenus under Arts. 226, and 227 of the Cons-
titution, two High Courts have struck down the order as ulii-a vires.
On appeal it was contended by the State that the right of a person to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22 of the Constitution having been suspended by the Presidential Orders of
June 27, 1975 and January 8, 1976 issued under Art. -359(1) for the period
during whjch the Proclamation of Emergency was
in!orce, no person had
locus standi to move an application under Art. 226 for the 'issue of a writ to
enforce any right to personal liberty.
Allowing the appeals,
(per Ray, C.J. and Jaswant Singh, J.)
HELD : The Writ Petitions were not maintainable and the High Courts were
clearly in error in passing the impugned directions which were not warranted by
any relevant law including the law relating to preventive detention. [732 DJ
1. It is well settled by the decisions of this Court that if a
person was
deprived of his personal liberty not ull{ler the 'Defence of India Act, 1962 or
any rule or order made thereunder but in contravention thereof, his locu.r standi
to move any court for the enforcement of the rights conferred by Arts. 21 and
22 was not barred. On the other hand since the Presidential Orders dated June
27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their
applicability was not made dependent upon the fulfilment of any conditions pre-
cedent. They imposed a total or blanket ban on the enforcement of the funda-
mental rights conferred by Arts. 19, 21 and 22.
There is,_therefore, no room
for doubt that these Presidential Orders unconditionally suspended the enforce-
ability of the right conferred upon any person; including a foreigner, to move
any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and
22· of the Constitution. [742 E, G-H]
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Additional District Magistrate, Jabalgµr v. Shiva Kant Shukla rt976] 2 S.C.C.
521-A.I.R. 1976 S.C. 1207, Makhan Singh v. State of Punjab [1964] 4 S.C.R.
H
797-A.I.R. 1964 S.C. 381, StQJle of Maharashtra v. Prabhakar Pandura11g Sanz-
giri [1966] 1 S.C.R. 702-A.I.R. 1966 S.C. 424, Dr. Ram Manohar _Lohia v.
State of Bihar [1966] 1 S.C.R. 709-A.I.R. 1966 S.C. 740, A. K. Gopalan v.
The State of Madras [1950] S.C.R. 88-A.I.R. 1950 S.C. 27 and Kharak Singh
v. State of U.P. [1964] 1 S.C.R. 332-A.I.R. 1963 S.C. 1295, followed.
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720
SUPREME COURT REPORTS
[1977] 2 S.C.R.
2. When a person has no locus standi to move any Court to challengi: his
orde~ • of deti;ntion, the High Court could not issue directions disn:garding the
provmoru ~f the Act, which is a self-contained code, and particularly ss. 5 and
12(6) which are mandatory.
[745 F-Hl .
Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730, followed .
. 3. As Articles. 19, 21 and 22 of the Constitution have· been suspe:nded
d]Jnng the operation of the Proclamation of Emergency, the Con:;ervation of
Foreign Exch;mge and Prevention of .Smuggling Activities Act and. the orders
made or passed thereunder were not open to challenge on the ground of their
being inconsistent with or repugnant to Arts. 14, 19, 21 and 22 of the Constitu-
tion in view of the Presidential Orders, dated June 27, 197 Sand January 8, 1976.
£742 G-Hl
1n the instant case the detenus covertly sought to enforce the vary rights
which were suspended. It was not open to the High Courts to strike down the
impugned clauses of the Maharashtra CoricExcerpt shown. Read the full judgment & AI analysis in Lexace.