Constitutional Law

Makhan Singh Tarsikka v. State of Punjab

AIR 1964 SC 381

Citation: AIR 1964 SC 381
Court: Supreme Court of India
Date: 2 September 1963
Bench: P.B. Gajendragadkar; K.N. Wanchoo; M. Hidayatullah; J.C. Shah; N. Rajagopala Ayyangar; J.R. Mudholkar; S.M. Sikri

Facts

A National Emergency was proclaimed in October 1962 during the conflict with China.
Parliament enacted the Defence of India legislation, and preventive-detention orders were passed under the Defence of India Rules.
The President issued an order under Article 359(1).
The order suspended the right of persons detained under the Defence of India legislation to move any court for enforcement of Articles 21 and 22 during the Emergency.
Makhan Singh and other detainees sought habeas corpus before different High Courts.
They challenged:
the validity of the detention provisions;
the legality of their detention orders; and
the extent of the bar created by the Presidential Order.
Conflicting judicial approaches led to consideration by the Supreme Court.

Whether Article 359 suspends the fundamental right itself or only the right to seek judicial enforcement.
Whether the Presidential Order barred proceedings under:
Article 32;
Article 226; and
ordinary habeas corpus jurisdiction.
Whether every possible challenge to detention was prohibited.
Whether grounds independent of the suspended fundamental rights remained available.

Article 359 does not formally erase the specified fundamental rights.
It suspends the right to move a court for their enforcement during the stated period.
The phrase “any court” includes:
the Supreme Court;
High Courts; and
courts exercising ordinary habeas corpus powers.
A detainee cannot avoid the Presidential Order merely by changing the procedural form of the petition.
However, the bar extends only to claims seeking enforcement of the rights actually mentioned in the Presidential Order.
Challenges based on grounds independent of those rights may remain maintainable, including:
lack of legislative competence;
the order not being authorised by the statute or rule;
failure of a statutory condition;
mistaken identity;
mala fides; or
violation of a fundamental right not included in the Presidential Order.

The Court rejected the claim that the detainees could use Section 491 of the Criminal Procedure Code when Articles 32 and 226 were unavailable.
The substance of the claim, not the procedural label, determined whether it was barred.
Where a detainee alleged that detention violated Articles 21 or 22, the Presidential Order prevented the court from granting relief during its operation.
However, Article 359 did not make the executive completely lawless.
The executive still had to show that its action was taken under the Defence of India legislation.
A detention order against a person entirely outside the statutory power would not become valid merely because enforcement of Articles 21 and 22 was suspended.
Similarly, a challenge that Parliament lacked competence to enact the legislation did not necessarily seek enforcement of a suspended right.
The Court therefore drew an important distinction:
a challenge based upon a suspended fundamental right was barred;
a challenge showing that the executive had never acted under lawful statutory authority could remain open.
The validity of a petition depended upon its true constitutional ground rather than the relief’s formal description.

The Supreme Court held that the Presidential Order barred access to all courts for enforcement of Articles 21 and 22 in the covered detention cases.
The rights themselves were not formally repealed, but their judicial enforcement was suspended.