Analysis of Makhan Singh Vs. State of Punjab

Makhan Singh Vs. State of Punjab (and connected appeals)

Facts of the case

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In the wake of the Chinese Chinese aggression aggression commencing commencing form form the 8th September September,, 1962, the President declared emergency in India nder article !"2 of the constittion on the 26 #ctober, 1962$

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%he &efence of India #rdinance1962 '(o$ ) of 1962* was also promlgated on that day$

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+n ordinance promlgtaed on (oember !, 1962 sspended the rights of citi-ens to moe to any Cort for the enforcement of the rights conferred by +rt$ 21 and 22 of the Constittion for the period dring which the proclamation of emergency issed on #ctober 26, 1962 wold be in force. nder article !"9'1* of the Indian Constittion$

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#n (oember 6, 1962, the rles framed by the Central /oernment were pblished$

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%he amendment of the Presidential order passed on 11 (oember, added +rticle 1) of the constition as well$

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#n &ecember, 6, 1962, 0le ! as originally f ramed was amended and 0le !+ added$

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#n &ecember 12, 1962 the +ct was made$ Section )8'1* of the +ct proided proided for the repeal of the #rdinances (os$ ) and 6 of 1962$ Section )8'2* proides that notwithstanding sch repea repeal, l, any any rle rless made, made, anyt anythi hing ng done done or any any actio action n take taken n nde nderr the the afor aforesa esaid id two two #rdinances #rdinances shall be deemed to hae been made, done or taken nder this +ct as if this +ct had commenced on #ctober 26, 1962$

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 3ence, the 0les made made nder the #rdinance #rdinance contined contined to be the 0les 0les nder the +ct, +ct, and the appellants had been detained nder 0le !'1*'b*$

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In totality there were 26 criminal appeals, nine against the decision of the Pn4ab 3igh Cort, and 15 against the deecision of the ombay 3igh Cort$

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+ll the appellants were detenes who had been detained by the Pn4ab and the 7aharashtra State /oernments nder 0le !'1*'b* of the &efence of India 0les 'hereinafter called the 0les* made by the Central /oernment in eercise of the powers conferred on it by the &efence of India #rdinance$

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%hey had applied to the Pn4ab and the ombay 3igh Corts respectiely nder section )91 '1*'b* of the Code of Criminal Procedre and alleged that they had been improperly and illegally detained$

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%heir contention was that s$ !'2*'1"*'i* and s$ ) of the &efence of India +ct, 1962 '(o$ "1

of 1962* and 0le !'1*'b* nder which they hae been detained were constittionally inalid, becase they contraened their fndamental rights nder +rticles 1), 21 and 22')*, '"*  '5* of the Constittion, and so, they claimed that an order shold be passed in their faor directing the respectie State /oernments to set them at liberty$ •

%hese petitions had been dismissed on the grond that the Presidential #rder which has been issed nder +rt$ !"9 of the Constittion creates a bar which precldes them from moing the 3igh Cort nder s$ )91'1*'b* Cr$ P$ C$

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%he allahabad 3igh Cort had in similar case faored the detenes, and it was this difference of opinion with the ombay and Pn4ab 3igh Corts which lead to the formlation of the Special ench for the appeal$

Relevant Laws

!"ticle #$%.:hile a Proclamation of ;mergency is in operation, nothing in article 19 shall restrict

the power of the State as defined in Part III to make any law or to take any eectie action which the State wold not for the proisions contained in that Part be competent to make or to take, bt any law so made shall, to the etent of the incompetency, cease to hae effect as soon as the Proclamation ceases, to operate, ecept as respects things done or omitted to be done before the law so ceases to hae effect$

#$&. '1* :here a Proclamation of ;mergency is in operation, the President may be order declare

that the right to moe any Cort for the enforcement of sch of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any cort for the enforcement of the rights so mentioned shall remain sspended for the period dring which the Proclamation is in force or for sch shorter period as may be specified in the order$ '2* +ny order made as aforesaid may etend to the whole or any part of the territory of India$<

Section )9l'l*'b* ofthe Code of Criminal Procedre '+ct " of l898* proided= +ny 3igh Cort may, wheneer it drinks fit, direct

'b* that a person illegally or improperly

detained in pblic or priate cstody within sch limits be set at liberty$ 1

!nal'sis

1%he proision has been omitted in the Code of Criminal Procedre, I95!$

&ring the operation of the ;mergency from 19621969, the Spreme Cort confined its role only to an eamination of the propriety of instances of preentie detention in terms of the applicable legislation$ %he Cort did not endeaor to rle on the scope and operation of the constittionally garanteed >ndamental 0ights dring an ;mergency$ (or did it assert its powers of 4dicial reiew in terms of the constittionally entrenched proisions on the Spreme Cort$ %hs in all these cases it has basically pheld the decisions of preentie detentions, and the case of 7akhan Singh is an eample of sch cases$

%he main isses considered by the Cort in the case were the following= 1$ :hat was the tre scope and effect of a Presidential #rder issed nder +rticle !"9'l*? 2$ &id the bar created by the Presidential #rder operate in respect of applications for habeas corps made by detainees, not nder +rticle 226 of the Constittion, bt nder section )91 ofthe Criminal Procedre Code?

%he Cort ths considered whether +rticle !"9 of the Constittion was to be so constred as to empower the President to sspend @all actions which a person may take nder a statte or common law, if he seeks thereby to protect his liberty against nlawfl encroachment by the state or its officersA :as the effect of the Presidential #rder confined to the constittional remedies garanteed  by +rticles !2 and 226, or wold the #rder also bar remedies which are conferred by ordinary stattes, sch as by section )9l of the Code of Criminal Procedre?

%he Spreme Cort conceded that the right to claim relief nder the Code was a right which was distinct and separate from that conferred by +rticles !2 and 226 of the Constittion$ It was stressed that what was to be eamined was not the technical procedral form in which the action was initiated, not whether it was by writ petition nder +rticle !2 or +rticle 226 of the Constittion, or  by proceedings sanctioned by ordinary state, bt rather that it was the @sbstance of the matter< which was decisie$ %herefore, proceedings taken nder section )91 of the Criminal Procedre Code wold be on the same footing as writ petitions nder the Constittion and wold, with respect to pleas based on rights conferred by the +rticles specified in that Presidential #rder, be eBally liable to attract the procedral bar$< %he tre test to determine whether a particlar proceeding is barred is to eamine the sbstance and not the form$ In the words of stice /a4endragadkar= @ In determining the Bestion as to whether a particlar proceeding falls within the mischief of the

Presidential #rder or not, what has to be eamined is not so mch the form which the proceeding has taken, or the words in which the relief is claimed, as the sbstance of the matter$$$before granting the relief claimed by the citi-en, it wold be necessary for the Cort to enBire into the Bestion whether any of his specified fndamental rights hae been contraened$ If any relief cannot be granted to the citi-en withot determining the Bestion of the alleged infringement of the said specified fndamental rights, that is a proceeding which falls nder +rt$ !"9'1* and wold, therefore, be hit by the Presidential #rder issed nder the said +rticle$ %he sweep of +rt$ !"9'1* and the Presidential #rder issed nder it is ths wide enogh to inclde all claims made by citi-ens in any cort of competent 4risdiction when it is shown that the said claims cannot be effectiely ad4dicated pon withot eamining the Bestion as to whether the citi-en is in sbstance, seeking to enforce any of the said specified fndamental rights$

stice Sbba 0ao dissented and arged that section )91 of the Code. thogh remedial in form,  postlates the eistence of the sbstantie right$ 3e identified that sbstantie right as a common law principle that no person can be depried of his or her liberty ecept in the manner prescribed by law$ stice Sbba 0ao spported his conclsion as to the aailability of a remedy nder section )91  by classifying the 3igh CortDs power nder the Code as prely discretionary, and hence distinct from the ErightD to moe a cort as garanteed by +rticles !2 and 226$ Since he conceded to the Fegislatre the power to take away this sbstantie right, stice Sbba 0ao clearly did not derie the procedral right in Bestion from an implied constittional rle of law or principle of legality$ In the absence of a principle of legality which transcends the specific >ndamental 0ights conferred  by Part III of the Constittion, the opinion epressed by stice Sbba 0ao is nconincing$ :hether the 4risdiction of the Cort is inoked by irte of a constittional proision, sch as +rticle !2 or +rticle 226, or inoked by reliance pon ordinary statte, does not, in itself affect the content of the sbstantie right soght to be asserted$ %he Bestion of an alternate 4risdictional  basis is irreleant if the position regarding the legal procedre to enforce it is nclear$

:ith respect to the general scope and legal conseBence of a Presidential #rder nder +rticle !"9'l*, the Spreme Cort, in 7akhan Singh, obsered that its legal effect was to constitte @a sort of moratorim or blanket ban< against the initiation, or contination, of any legal action which Ein sbstance soght to enforce a >ndamental 0ight specified in the Presidential #rder$ #n this interpretation of +rticle !"9, the Spreme Cort nanimosly< conclded that a Presidential #rder cold neer operate as a bar to proceedings in which eectie action is attacked on gronds which are not relatable to the specified >ndamental 0ights$ Speaking on behalf of si of the seen

 4dges of the ench, stice /a4endragadltar identified seeral pleas which were not barred by the Presidential #rder$ %hese concerned the enforceability of rights other than those specified in the Presidential #rder infringement by the detaining athority of mandatory proisions of the detention legislation. and mala fides$