SCOPE OF PERSONAL LIBERTY DURING EMERGENCY 323

Scope of Personal Liberty during Emergency—Makhan Singh Tarsikka

v. The State of Punjab.*
This is yet another provocative decision in the field of personal
liberty comparable in importance perhaps only to the case of
A. K. Gopalan v. The State of Madras,1 the first test case on personal
liberty and detention. The Supreme Court has by its present ruling
convincingly proved to the juristic world the pattern of judicial
thinking concerning the concept of personal liberty already made
known in its earliest constitutional pronouncement in Gopalatis case.
It may not be out of place to quote here the opinion of an
eminent jurist who, while drawing a comparsion between the English
and the Indian systems of law providing for the remedy of habeas
corpus in cases of deprivation of personal liberty by preventive
detention, strikes the following significant note : "But this is exactly
the difference between the two systems of law : in English law in case
of emergency the remedy of habeas corpus remains in principle available
to detenus though the power of the judges to go into the grounds of
detention is curtailed; in India the power of the judges in normal
habeas corpus cases (under the Preventive Detention Act) is already cut
down to an "emergency" level, while in case of proper emergency
proclaimed under the provisions of Part X V I I I , the writ o$ habeas
corpus may be entirely suspended as in the United States." 3 This
pertinent remark of the learned professor, made in the fifties,
concerning the state of the law in India providing for the remedy
of habeas corpus, anticipates a ruling such as the one laid down by the
Supreme Court in the case under consideration, wherein the constitu-
tional validity of certain provisions of the Defence of India Act and
the relevant statutory Rules was challenged by habeas corpus petitions
under s. 491(l)(b) of the Criminal Procedure Code.
Broadly speaking, one cannot help agreeing with the conclusions
arrived at by the Supreme Court in this case and, more particularly,
with the construction put upon Article 359 of the Constitution of
India and its impact not only upon Articles 32 and 226 of the
Constitution, but also upon section 491(l)(b) of the Criminal Procedure
Code all of which confer upon the detenus the remedy of habeas
corpus, so long only as the President refrains from exercising his power
under Art. 359.

* A.I.R. 1964 S.C. 381.

1. AI.R. 1950 S.C. 27.
2. C. H. Alexandrowicz, Constitutional Developments in India, p. 30.

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324 CASES AND COMMENTS

One heartening feature of the majority view, inter alia, is the

Court's refusal, for whatever reason, to be drawn into the merits.of
the controversy between the parties relating to the two rival
constructions that may arise under Art. 359, one in favour of the
grant of power to the President and the other in favour of upholding
the citizens' fundamental rights. The other aspects of the judgment
which merit consideration are respectively the repudiation by the
Court of the theoretical nicety of the rights being kept alive despite the
said exercise of power by the President vested in him under Art. 359,
as well as its disallowance of the "academic declaration" sought for by
one of the petitioners for invalidating the impugned Act and the
relevant statutory Rules, without their seeking at the same time the
consequential relief of invalidation of the detention orders due,
obviously, to the disablement caused by the Presidential Order
under Art. 359.
Justice Subba Rao in his dissenting judgment so construes
s. 491(1) (b) of the Criminal Procedure Code as to afford the detenus
who are being detained under the Defence of India Act the remedy
of habeas corpus (denied to them under Articles 32 and 226 of the
Constitution), not for the limited purpose of impeaching the detention
on the ground of extrinsic, collateral acts such as fraud, mala fides and
the like, nor even on the ground of the authority acting without
jurisdiction or in excess of it, but for the very purpose of challenging
it as amounting to an infringement of fundamental rights generally
(though not for the enforcement of the petitioner's fundamental right
as such), the Presidential order under Article 359 notwithstanding.
The learned judge's opinion, albeit significant for its forceful logic
and succinct presentation, does not commend itself to us.
However, the majority judgment too cannot escape criticism due
mainly to the Court's reluctance to bring out in bold relief the true
scope and operation of the concept of the freedom of person during
an emergency. One is naturally disappointed that the Court failed
to point out the anomaly arising out of the simultaneous existence
and operation of two emergency laws, the Preventive Dentention Act
and the Defence of India Act—one superimposed upon the other—,
and the consequent cumulative effect of vesting in the Government
by delegation, wide unguided and perhaps arbitrary discretionary
powers to choose between the laws in cases of detention, which might
offend not only against Art. 14 of the Constitution but also against
the spirit of the cardinal constitutional doctrine of delegatus non potest

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 SCOPE OF PERSONAL LIBERTY DURING EMERGENCY 325

delegare. Be that as it may, the Supreme Court could have at least

suggested that the Government would be well advised to have recourse
in ordinary cases of dentention only to the Preventive Detention Act
in which, we find, the incorporation of the accepted canons of
procedural due process. Exceptional cases that undermine the
security of the State or tend to overthrow it could be promptly and
effectively dealt with under the Defence of India Act. A favourable
response on the part of the Government to such a wholesome and
timely advice of the Supreme Court would vindicate the true nature
of our democracy whose presumptive evidence can be none other
than the "rule of law", unmistakably proclaimed in our Constitution.
To conclude, it may be said that while one would unhesita-
tingly approve of the law laid down by the Supreme Court in this
emergency case affecting the freedom of person, one cannot
justifiably accept what would amount to an attempt on the part of
the Supreme Court to equate the Preventive Detention Act with the
Defence of India Act, inasmuch as it claimed to have acted even in
Gopalan's case—a clear non-emergency case arising under the
Preventive Detention Act—on the emergency law laid down by the
House of Lords in England in the leading cases of Liversidge v. Sir
John Anderson^ and Rex v. Halliday} Strange as it may seem, even
the abortive Constitution (Eighteenth) Amendment Bill, recently
proposed to Parliament by government with the avowed object of
modifying Article 359 of the Constitution, is a sequel to (with intent
to neutralise) the warning administered by the Supreme Court which,
while interpreting Art. 359, adverted to the possibility of the
Government running the risk of being sued for its illegal actions
during emergency, once the Presidential Order under Article 359
terminated. An attempt of this kind which is so out of touch with
the spirit of democracy and rule of law, solemnly enshrined in
Part III of the Constitution, and so calculated to defeat the expecta
tions of the judiciary, the protector and guarantor of fundamental
rights, is not a good advertisement for the Government.

V. C. Govindaraj*

3. [1942] A.C. 206.

4. [1917] A.C. 260.
* Lecturer in Law, University of Delhi.

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