Ghulam Sarwar v. Union of India & ors

**A** GHULAM SARWAR _v._ UNION OF INDIA & ORS. _December_ 15, 1966 **B** [K. SUBBA RAO, C.J., M. HIDAYATULLAH, S. M. SIKRI, R. S. BACHAWAT AND J. M. SHELAT, JJ.j _Practice-Order_ _of High Court dismissing petition for issue_ _qf writ_ _of_ habeaa _corpus-Petition_ _fo_ _Supreme Court under Art._ _32-0rder of High_ _Court_ _If_ res judicata. _Constitution_ _of /lldia,_ 1950, _Art._ _359-If Presiden. can_ _issue_ _more_ _than_ _one ord<r-Order applicable only_ _to_ _foreigners-If violative_ _of_ _Art._ 14. _Foreigners_ _Act_ (31 _of_ 1946)., _s._ 3(2) _(g)-Detention_ _under for investi-_ _gation_ _into conspiracy_ _to_ _smuggle_ _gold-If_ mala lido. _Supreme Court Rules, ·0.35,_ _rr._ 3 _and_ 4 _Scope of._ After the President of India issued a Proclamation of Emergency under Art. 352( 1) of the Constitution in October 1962, he io"11ed two orders under Art. 359( 1) which were subsequently amended. By one, a• amended, the right of a foreigner to move any court for the enforceneit of the rights conferred by Arts. 14, 21 and 22 of the Constitution wa• suspended during the period of emergency. By the other order, as **amended,** **the** **right** **of** **any person to move any court for the enforce ..** ment of the rights conferred by Arts. 14, 21 and 22 was suspended during the period of emergency, if such person was deprived of any such rights under the Defence of India Ordinance, 1962, or any rule or order thereunder. In 1964, the petitioner, who was a Pakistani national, was arrested for an offence unller the Indian Customs Act, 1962. When he WU about ti> be enlarged on bail he was detained by an order under s. 3(2)(1!) of the Foreipers Act, 1946. According to the respondent, the petitioner was detamed as investigation was in progress in respect of a caae or conspiracy to smuggle gold, in which the petitioner was involved. Thereafter, h~ was tried and convicted for the o ince under the Customs Act and sentenced to 9 months imprisonment. Before the expiry of the term of imprisonment he moved the High Court for the issue of a writ of _habeas_ _corpus,_ but the petition was dismissed. After serving the sentence he moved this Court, under Art.· 32, again for the issue or a writ of _habeas_ _corpus_ raising new contentions as to the validity of s. 3(2)(g) of the Foreigners Act and the President's order under Art. 359(1), relating to foreigners. ' . HELD _(Per_ Subba Rao, C. J. Hidayatullah, Sikri and Shelat, JJ;): (1) The order of the High Court does not operate as _res judicata,_ either because it is not .a judgment or because the principle is not applicable to a fundamentally lawless order, and this Court has to decide the petiti<in on. merits. [277 DJ In the case of a High Court, when it functions as a Divisional Bench it speaks for the entire court, and therefore, it cannot set aside the order made by another Divisional Bench in a petition for a writ of' _habeatf_ _corpus,_ except on fresh evidence. But when the person detained I ' ###### c **D** E F G **H** ~72 SUPREME COURT REPORTS (1967] 2 S.C.R. **tiles** **an** **origi11;1l** **petition** **for** _**habeas**_ corp1t.~ **before** **1his** **Court** **un,Jcr** **Art.** **A** .12, tho order of the High Coun will not operate as _res judicata._ If the Joctrine of _l'C.<_ _iudicata_ is applicabl~ in such a ca'i<! so would be tho **Joctrinc** **of comtructive** _**res judicota.**_ **and.** **if** **a** **pcticioncr** **could** **have** **raised** **a contention** **\vhich** **would** **m:ikc** **the** **detention** **Order** **fundamentally** **lav.·-** less, but did not do so in the Hig)t C<iurt. it would be deemed to have been raised. and this Courl. though enjoined by the Con<titution to protect the right of a person illegally detained. may become p<l\\Crl""5 _ID_ do so [276 F-H: 277 A-CJ 8 Da~1-c1> '· _S1<11c_ _of_ _U.I' .._ [1%2[ I S.CR. 574, rdcrrcJ to. (2) Article _359_ empo"·crs the President to make an order for tl1e purpose mentioned therein. and as the singular includes the plural. he can make dilTcrent order-; applicable to different groups of persons. **Tht!re** **is** **nothing** **in** **the** **Artich!** **1,1:hich** pr~vcntco **the** **President** **from** **r"1-** ners. **tricting** [280 **the** A-CJ **scope** **of** **a.n** **or<lcr** **to** **a** **c1:iss** **of** pc~ons. **namt:f, foreig-** c **(3)** **There** **i.:;** **a distinction** **hct\\·ccn** **the** **President".;** **or<lcr** **and** **the** **effect** of that order. Under Art. 359( 1) the President can only make an order which i< valid. If the order doc; not violate Art. 14 ii can validly **take away the right** **to** **n1ovi.:** **the court to enforce Arr. 14.** **But** **an** **order** **makinl:!** **;1n** **unjllStificd discrin1ination in** **suspending** **the** **right to** **move a court unJcr** **Art.** **14** **ilSl·lf.** **v.·ilt** **he** **void** **at** _**i:s**_ **inception.** **There-** fore, the validity of the President's order issued under Art. 359( I) could **D** he questioned if it infringed the provisions of Art. 14 of the Constitl>tion. [280 F·Hl _**Sree**_ _**J..{ol1an**_ _**C!iowd/1111T**_ **\.** _**(,'/1ief**_ _**Co111111i.fsio11er,**_ _**Trirurll,**_ **[1964) 3** S.C.R. 442. explained. **(4)** **There** i~ **ho\lr·evcr,** **a clear nexus between the classification info** foreigners and citizens, and the object sought to be achieved by the **President's orders.** **Therefore the making** **of** **two orders, one confined** **to** foreigners and the other applicable to all person. including foreignen, does not violate Art. 14. The two orders are mainly intended to operate in different fields and their se<>pe is different, though there is some **overlapping.** **There \\'as a greater danger from** **the** **!'.Uhversivc** activiti~ **of** **foreigners.** **and** **therefore,** **it** **was** **Ol."CCSSary** **to** **is!lue** **a sptcial** **order.** wider i3 se<>pc and taking in other rights. than that which was confined only to persons who had been deprived of certain rights under the Defence of India Ordinance. [282 A-DJ (S) As the President's order suspending the_ right to move tbe C<lUrt to enforce the right under Art. 14 is valid, the petitioner has no right to **move** **the** **court** 9n~uent **to** **the** incl~ion **of** **Art.** **14** **in** **the** **Prci;ident's** order relating to foreigners. The fact that he complained of his deten**tion** **for** **a** **period** **earlier** **than** **the** **amendment** **has** **no** **bearing** **on** **the** **ques-** tion of maintainability of the petition. [282 H; 283 A] (6) If the petitioner was in fact involved in a conspiracy to smugsle i:old, there is no reason why the wide power conferred on the Central Government to detain him under s. 3(2) (g) of the Foreigners Act could not be invoked. Such a detention for the purpose of investigation was not _ma/a_ _f,de._ [283 F-G} [The question whether this C<>urt can ascertain whether the action of **the** **Executive** **in** **declaring** **the** **ernergency** **or** **continuing** **it** **is actuated** **by** _mala_ _(ul-'S_ and is an abuse of its poi.er, left open.} [278 E] _Per_ Bachawat, _I:_ (!) The order of dismis.<al by the High Court doea not operate as _res judlcata_ and does not bar the petition under Art. 32, E **F** **G** **H** GHULAM SARWAR _v._ UNION _(Subba Rao,_ C.J.) 273 A A **asking for the issue** **of** **a writ** **of** _**habeas corpus**_ **on** **the same facts.** **The** petitioner has the fundamental right to move this Court under Art. 32 and **the petition must therefore** **be** **entertained and examined on merits.** **The** order of the High Court is not a judgment; and the previous dismissal of such a petition by the High Court is only one of the matters which **this Court may take** **in** **[1]** **0** **consldcration under** **0.** **35,** **rr.** **3 and 4** **of** **the** **Supreme Court** **Ruic.;,** **before issuing a rule** _**nisi.**_ **The petitioner, how-** **ever, would not have a right to move this Court under Art. 32. more** **B** than once on the same. facts. 1283 H; 284 A-CJ (2) Assuming that !he President's order under Art. 359(1) is "l:.w" **within the meaning** **of** **Art.** **13 ( 2).** **and can he pronounced invalid on** lhe ground that it abridges or lakes away the right conferred by Art. 14, **the order** **in** **the** **present** **case** **is** **not di:>criminatory and** **is** **not** **violative** **0f** Ari. 14. [285 E-F] **c** ORIGINAi. JURISDICTION : Writ Petition No. 155 of '%6. **B** **D** E Writ Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. _R._ _V._ _Pillai,_ for the petitioner. _N._ _S. Bindra_ and _R._ _N._ _Sachthe)',_ for respondents Nos. I to 3. The Judgment of SuBBA RAO, C.J., HIDAYATULLAH, SIKRI and SHELAT, JJ. was delivered by SUllBA RAO, C.J. BACHAWAT, J. delivered a seperate Concurring Judgment. Subba **Rao,** C.J. This p~tilion under Article 32 of the Constitution of India raises the question of validity of t'he detention of the petitioner under s. 3 of the Foreigners Act, 1946 (Act No. 31 of 1946) (hereinafter called the Act). The petitioner is a Pakistani national who entered India without any travel documents. On May 8, 1964, he was arrested in New Delhi by the Customs Authorities under s. 135 of the Indian Cust•.>1m Act, 1962. On May 9, 1964, he was ordered to be enlarged F on bail. On May 18, 1965, he was.ordered to be released. When he was about to be released from jail, a detention order was served on him hy the Central Government under s. 3(2)1 •) of the Act. It was said that he had to be detained, as police investigation was in progress in respect of a case of conspiracy to smuggle gold of~ which he was a member. On May 29, 1965, he was convicted by G the Maghtrate, First-Class, Delhi, of an offence under the Customs Act and sentenced to undergo rigorous imprirnnment for a period of 9 months and to pay a fine of Rs. 2,000/-. The appeal filed by him to the Sessions Judge against that order was dismissed. The petitioner underwent imprisonment and also paid the fine. Before his term of imprisonment expired, the petitioner filed a writ of _liaheas corpus_ in the Circuit Bench of t:1e Punjab High Court **H** at Dellli challenging his detention. That petition was dismissed hy Khanna, J., on merits. Before the learned Judge the constituti0nal validity of s. 3(2)(g) of the Act was not c<1nvassed. The Ml Sup. Cl/67 -4 274 SUl'Rl!Mll COURT RP.PORT~ (1967] 2~5.C.R. learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any _mala jides._ He negatived the contention raised before him that an order under that sub-section could not be made for the purpose of completing an investigation in a conspiracy case, as no such limitation was found therein. Jn short, he dismissed the petition on merits. The present petition was filed in this Court under Article 32 of the C:mstitution on May 12, 1966 for issue of a writ of _lm!>eas_ _'carpus_ against the respondents directing them to set him at liberty on the ground that the provisions of the Act •1·ere invalid. Before we consider the various contentions raised by Mr· R. V. Pillai in support of the petition, we would at the outset deal with a preliminary objection raised by Mr. N. S. Bindra, learned coumel appearing for the r "spondents. Mr. N. S. Bindra, contended that the order made by Khanna, J., dismissing the writ of _habea.r_ _corpus_ filed in the Circuit Ber.ch of the Punjab High Court operated as _resj11dict11a_ and barred the maintainability of the present application. _The_ decision of this Court in _Daryao_ v. _Thi·_ _State_ _of_ _U._ P.( [1] ) was relied upon in support of the said contention. There, the High Court dismissed a writ petition under Art. 226 of the Constitution afler hearing the matter on merits, on 'l the ground that no fundamental right was proved or contravened and that its contravention was constitutionally justified. The petitioner therein did not prefer an appeal against that order to this Court; but he filed an independent petition under Art. 32 of the Constitution in this Court on the same facts and for the same reliefs. This Court held that the petition in this Court would be barred by the general principles of _res_ _judicata._ That decision related to a right claimed by the petitioners therein. The petitioners in that case sought to enforce their fundamental right to property which had been negatived by the High Court in its order made on an application presented by them under Art. 226 of the Constitution. While upholding the plea of _ri•s judicata,_ this Court made the follo"'ing observations in the context of the said plea _ris-a-vis_ the writ of _habeas corpm_ : "Jn' England, technically an order rassed on a petition for _habeas_ _corpus_ is not regarded as a judgment and that places the petitions for _habeas_ _corpus_ in a class by themselves. Therefore, we do not think that the English analogy of several _habeas_ _corpus_ arrlications can assist the petitioners in the present case when they seek to resist the application of _res judicata_ to petitions filed under Art. 32. Before we part with the topic. we would, however, like to (I) [1962] I S.C.R. _574,_ 590. A B c D E F H A B c D E F G H ## - GHULAM SARWAR _v._ UN.ION _(Subba Rao,_ C.J.) 2 7 5 add that we propose to expr~ss no opinion on the question as to whether repeated aprlications for _habeas corpus_ would be competent under 0ur C0nstituti::m. That is a matter with 11hich we arc n0t concerned in the present proceedings." A decision which expressly leaves open a question cannot obviously be an authority on the said question. The said question, which was so left open, now falls to be decided. Conversely, the correctness of that decision does not call for any reconsideration in the present petition, for that is ·outside the scope of the question now raised before us. This leads us to the consideration of the scope of a writ of _habeas corpus._ The nature of the writ of _habeas corpus_ has been neatly summarized in _Corpus Juris Secundum,_ Vol. 39 at p. 424 thus : "It is a writ antecedent to statute, and throwing its root deep into the genius of our common law .... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I". This writ has been des~ribed by John Marshall, C.J., as "a great constitutional privilege". An eminent judge observed "there is no higher duty than to maintain it unimpaired". It was described as a magna carta of British liberty. Heavy penalties are imposed on a judge who wrongfully refuses to entertain an application for a writ of _habeas corpus._ The history of the writ is the history of the conflict between power and liberty. The writ provides a prompt and effective remedy against illegal restraints. It is inextricably intertwined with the fundamental right of personal liberty. _"Habeas_ _Corpus"_ literally means "have his body". By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo Saxon jurisprudence. We need not go into the history of this writ in India, for it is now incorporated in Art. 226 and Art. 32 of the Constitution. "The writ of _habeas corpus_ is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause. of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf". Blackstone in his Commentaries said of this writ thus : 276 SUP!ll!MB COURT P.EPOllTS (1967) 2 S.C.lt. On the question of _res judicata,_ the English and the American Courts agreed that the principle of _res_ judicat~ is not applicable to a writ of _habeas corpus,_ but they came to that conclusion on different grounds. It was held in England that a decision in a writ of _habeas corpus_ was not a judgment, and therefore it would not operate as _res judicata_ and on that basis it was thought at one time that a person detained could file successive applications before different judges of the same High Court. But subsequently the English courts held that a person detained cannot file successive petitions for a writ of _habeas corpus_ before different courts of the same Division or before different Di visions of the same High Coun on the ground that the Divisional Court speaks for the entire Division and that each Division for the entire Court, and one Division cannot set aside the order of another Division of the same Court [Sec _Re_ _Hastinv_ ( [1] ) (No. 2) and _Re Ha-'lings_ (2) (No. 3)]. The Administration of Justice Act, 1960 has placed this view on a statutory basis, for under the said Act no second application can be brought in the s1mc court except on fresh evidence. The American Courts reached the same conclusion, but on a different principle. In _Edward M._ _Fay v._ _Charles Nola_ ( [3] ) the following passage appears : "As put by Mr. Justice Holmes in _Frank_ _v._ _Mangum_ (4) : If the petition discloses facts that amount to loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision of law. It is of the historical essence of _habeas corpus_ that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that _res judicata_ is im~ppl;cable in habeas proceedings." The same view was expressed in _Won,; Doo_ v. _United_ _States(')_ : _Harmon Metz Waley_ v. _James A. Johnston_ (6) : _Salinger_ v. _Loisel (_ _[1]_ _)_ : _United States v._ _Shaughnessv_ ( [8] ): and others. But coming to India, so far as the High Courts are concerned• the same principle accepted by the English Courts will equally apply• as the High Court functions in Divisions not in benches. When it functions as a Division, it speaks for the entire court, and, there fore, it cannot set aside the order made in a writ of _habms corpm_ earlier by another Division Bench. But this principle will not apply to different courts. The High Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have accepted this view, though the Calcutta High Court took the view that successive applications of _habeas corpus_ could be filed. But unlike in England, in India the person detained can tile original petition for enforcement of his fundamental right to lihcrty before a court other than the High Court, namely, this Court. The order of the High Court A B c D E F G H (I) 119181 3 All.E.R. 625. (3) 9 L. Ed. _859. (5) 68 I..E D. 999. _\1)_ (19Z5) 265 U.S. 224. (2) (1959) I All E.R. 698. 1o11 231 t:.s. 3.:8. (61 86 L. E.J. 13 2 (8) (195-\) 347 U.S. 26.i. ·' A B ###### c D E F G H GHULAM SARWAR I'. UNION _(S11bba_ _Rao,_ C.J.) 277 in the said writ is not _res_ _judicata_ as held by the English and the American Courts either because it is not a judgment or because the principle of _res_ _judicata_ is not applicable to a fundamentally lawless order. If the doctrine of _res_ _judicata_ is attracted to an application for a writ of _habeas_ _corpus,_ there is no reason why the principle of constructive _res_ _judicata_ cannot also govern the said application, for the rule of constructive _res_ _judicata_ is only a part of the general principles of the law of _res_ _judicara,_ and if that he applied, the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the President's order made under Art. 359 of the Constitution. If the doctrine of constructive _res_ _judicata_ be applied, this Court, though it is enjoined by the Constitution to· protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection. We, therefore, hold that the order of Khanna, J., made in the petition for _habeas_ _corpus_ filed by the petitioner does not operate as _res_ _judicata_ and this Court will have to decide the petition on merits. It was suggested that the declaration of Emergency under Art. 352 of the Constitution in the year 1962 and the continuation of the emergency for 4 long years after the cessation of the hostilities with China is _ma/a fide_ and is an abuse of powers conferred on the President under Part XVIII of the Constitution. The question raised involves two points : (1) whether the declaration of emergency or the continuation of it is vitiated by _ma/a fides_ or abuse of power, and (2) whether such a question is justiciable in a court of law. Our Constitution seeks to usher in a Welfare State where there is prosperity, equality, liberty and social justice. It accepts 3 concepts for bringing about such a State: (I) Federalism; (2) Democracy; (3) Rule of Law. in which fundamental rights and social justice are inextricably integrated. Under Part XVIII when the emergency is declared both the Legislative and the Executive powers of the Union are extended to States. The Federal Government is practically transformed into unitary form of Government. The fundamental rights of the people under Art. 19 are abrogated and the Executive is empowered to suspend the right to move thP, court for the enforcement of any other fundamental right. The executive is also empowered to direct that all or any other provisions relating to distribution of revenue be suspended during that period. Part XVIII appears to bring down the grand edifice of our Constitution at one stroke, but a little relkction discloses that the temporary suspension of the scheme of the Constitution is really intended to preserve its substance. This extra ordinary power.is unique to our 278 SUPREME COURT REPORTS [1967] 2 S.C.R. Constitution. It reflects the apprehension~ of the makers of the Constitution and their implicit confiJence in the parties that may come into power from time to time. Two expressions indk-ate the eittra ordinary situation whereunder this Part was intended to come into force. The expression 'grave emergency' in Art. 352(1) and the eitpression 'imminent danger' in Art. 352( 3) show that the existence of grave emergency or imminent danger is a pre-condi tion for the declaration of emergency. Doubtless, the question whether there is grave emergency or whether there is imminent danger as mentioned in the Article is left to the satisfaction of the Executive, for it is obviously in the best position to judge the situation. But there is the correlative danger of th~ abuse of such extra ordinary power leading to totalitarianism. Indeed, the perversions of the ideal democratic Constitution _i.e._ Weimar Constitution of Germany, brought about the autocratic rule of Hitler and the consequent disastrous World War. What is the safeguard against such an abuse? The obvious safeguard is the good sense of the Executive, but the more effective one is public opinion. A question is raised whether this Court can ascertain whether the action of the Executive in declaring the emergency or continuing it is actuated by _malafides_ and is an abuse of its power. We do not propose. to express our opinion on this question as no material has been placed before us in that regard. It requires a careful research into the circumstances obtaining in our country and the motives operating on the minds of the persons in power in continuing the emergency. As the material facts are· not placed before us, we shall not in this case express our opinion one way or other on this all important question which is at present agitating the public mind. Mr. Pillai then contended that the power of the President under Art. 359(1) to suspend the right to move any court for the enforcement of fundamental rights must have a real nexus to the security of India, and that the impugned order had no such nexll!. The President's order under Art. 359(1) of the Constitution reads : "GSR-1418/30-10-62 : In exercise of the powers conferred by clause (I) of Article 359 of the Constitution, the President hereby declares that the right of any person who is (a) a foreigner, or (b} . to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (I) of Article 352 thereof on the 26•h October, 1962 is in force. A B c D E F G H A B c D E F G H GHUL~M SARWAR _v._ UNION _(Subba Rao,_ C.J.) 279 GSR 1276127-8-1965 : In exercise of the p'Owers conferred by clause (I) of Article 359 of the Constitution, the Pres:dent hereby makes the following further amendment in Order No. GSR-1418 dated 30-10-1962 namely : 'In the said orders for the word and figure 'Article 21' the words and figures 'Article 14, Article 21' shall be substituted." Under Article 352 an emergency could be declared only when the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance, or when there is an imminent danger thereof; and any order issued under Art. 359 must have some correlation to the security of India, external aggression or internal disturbance. But the impugned order, the argument proceeded, was so wide as to deprive a foreigner of his fundamental rights though there was no connection between such dcprivatio[l and the security of India etc. To state it differently, the argument was that the scope of .he order under Art. 359(1) should be confined only to the sccJpe of the reasons on the basis of which an emergency could be declared. In the instant case, it was said that the said order empowered the Executive to detain the petitioner to await investigation in regard to smuggling of gold which could possibly have no relation to the security of India. We do not propose to express our opinion on this important question, as we are not satisfied on the material placed before us that the detention of the petitioner has no nexus to the emergency. The next contention was that the President under Art.· 359( 1) could not make orders suspending the right to move any court in respect of different categories of persons for the enforcement of the same fundamental right. To appreciate this contention, it may be mentioned that apart from the order dated 30-10-1962 relating to foreigners which we have already noticcdr the President passed an order dated 3-11-1962. It was subsequently amended on 11-11-1962. The order as amended declares that the right of any person to move any court for the enforcement of the rights conferred by Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period during w,hich the Proclamation of Emergency issued under clause (1, of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or anv rule or order made thereunder. It will be seen that the order dated 30-10-1962 was confined tO foreigners and the order dated 3-11-1962 was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962. Reliance was placed upon the terms of Art. 359 and a contention was raised that the said Article did not countenance orders on different 280 SUPREME COURT REPORTS (1967] 2 S.C'.R. groups of persons. It is true that Article 359 does not speak of persons but only speaks of a right to move any court and also to a period, or a part or whole of the territory. But Article 359 empowers the President to make an order for the purpose mentioned .therein and as the singular includes plural he can certain)) make different orders. But the question is : can he make an order or orders in respect of different groups of persons such as foreigners ·-and persons governed by the Defence of India Rules ~ It is true that the scope of his order shall be confined to whole or a part of the territory of India and during certain periods. But there is nothing in the Article which prevents the President frcm restricting the scope of the order to a class of persons, provided the operation of the order is confined to an area and to a period. The impugned orders apply to the entire country and the fact that only the persons who are affected by that order could not move the Court for the enforcement of their ri!!ht, cannot make themanythe less valid orders. The learned counsel then contended that _Art:_ 359( I) did not authorise the President to make an order meting out discriminatory treatment to foreigners, and e,,n if it did, not the order made in the instant case violated Art. 14 of the Constitution as there was no nexus between the classification of foreigners and citiz.ens and the object for which the said ord,er was made. Mr. Bindra, learned counsel contended that .Art. 359 conferred an absolute power or the President subject to the limitations found thereunder to make an order declaring that the right to move any court for the enforcement of one or more of the rights conferred by Part III should remain suspended, and, therefore, any order made thereunder could not be declared void on the ground that it infringed any of the fundamental rights suspended by the said order. It was said that the contrary view would amount to an argument in a circle. There is a clear distinction between deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by the President in exercise of a power conferred on him under a constitutional provision. A compariton of the provisions of Art. 358 and Art. 359 justifies this distinction. Under Article 358, by the force of that Article itself, Article **19** is put out of the way. Article 359(1) does not operate by its own force. The President has to make an order declaring that the right to move a court in respect of a fundamental right or rights in Part III is suspended. He can only make an order which is a valid one. An order making an unjustified discrimination in suspending the right to move a court under Art. 14 itself, will be void at its inception. It is a still born order. It cannot be said that this involves an argument in a circle. This argument ignores the distinction between the order and the effect of that order. **A** **B** c () E **F** **G** **H** A B ###### c D E F G H ### - GHULAM SARWAR _v._ UNION _(Subba Rao,_ C.J.) 281 If the order dces not _violate_ Art. 14, it can validily take away the right to move the court to enforce Art, 14. So viewed, the order of the President must satisfy the requirements of Art. 14. Mr. Bindra relied upon the decision of this Court in _Sree Mohan,_ _Chowdhury_ v. _The Chief Commission,_ _Union_ _Territory of Tripura_ ( [1] ) in support of his argument that the order of the President was untrammelled by the provisions of Art. 14. The passage relied upon reads _:_ "It was also contended that the President's order of Novem-· her 3, 1962, is subject to the condition precedent that there is a valid Ordinance and the rules framed or the orders made thereunder are valid. In other words, it is contended that it is open to the petitioner to canvass the validity of the Ordinance. This is arguing in a circle. In order that the Court may investigate the validity of a particular ordinance or Act of a legislature, the person moving ##### the Court should have a locus standi. If he has not the locus _standi_ to move the Court, the Court will refuse to entertain his petition questioning the vires of the particular legislation. In view of the President's order passed under the provisions of Article 359(1) of the Constitution, the petitio1."r has lost his _locus standi_ to move this Court during the period of emergency as already pointed out. '(hat being so, the petition is not maintainable". This passage has nothing to do with the validity of the order made under Art. 359(1). What this Court said was that, as under the Ordinance the petitioner therein had no right to move the Court to enforce his fundamental right, he had no _locus standi_ to question the validity of the Act, for, he could question the validity of the Act only if he could move the Court in regard thereto. We, therefore, hold that the validity; of the President's order issued under Art. 359(1) could be questioned if it infringed the provisions of Art. 14 of the Constitution. The next question is whether it infrigned Article 14. Mr Pillai put his arguments in two ways : (1) The President has made two orders"Under Art. 359(1); (i) GSR 1418 dated 30-10-1962 in respect of foreigners; and (ii) GSR 164 dated 3-11-1962 in respect of all, including foreigners. The terms of the order in regard to foreigners are without ariy limitations. But the order dated 3-11-1962 only affects persons who have been deprived of any of the fundamental rights referred to in the order under the Defence of India Ordinance, 1962 or lln) rule or order made thereunder. These two orders permit the authorities concerned at their discretion to rely upon the order which is more prejudicial or. drastic in respect of same persons. (2) The order of the President relating to foreigners is discriminatory as the fact that a person is a foreigner has no nexus to the object sought to be achieved, _i.e.,_ the security of the State. (I) (1964) 3 S.C.R., _441,_ 451. .!82 SUPREME COURT REPORTS [1967] 2 S.C.R. The formula underlying the doctri1w of classification has be. come ''' crystallised that it is unnecessary to refer to decisions. The principle is stated thus : "The cl;i>sification must h~ found on intclligihle differcntia which distinguishes persons or things that are ... grouped from those left out <lf the group and that the difierentia must have rational relation to the object sought to be achieved hy .the statute in question." What was the object of the order GSR .... 1418 issued by the President on 30-10-1962. There was a grave emergency. The Chinese attacked India and Pakistan was poised for an attack. There was a danger of internal sabotage. So, it was necessary to screen the foreigners, and to guard against their ;icts of sabotage and espionage. It was, therefore, necessary 10 issue '1 special order wider in scope than that of GSR 164 dated 3-11-1962 which was confined only to persons that had been ·deprived of certain rights under the Defence of India Ordinance. There was a greater danger from foreigners, and, therefore, a more drastic order only could meet the requirements of national security. Compared to foreigners, nationals, with some unfortunate exceptions, can be relied unon to support the country's integrity and security. There is, therefore, a clear nexus between the classification of foreigners and the citizens and the object sought to be achieved thereby. Nor can we :.ppreciate the argument that the making of two orders, on" confined to foreigners and the other confined to all persons, including foreign,rs, violates Art. 14. Though GSR 164 may also deprive foreigners, along with the citi1.ens, of their right to move the Court in respect of their rights deprived under a particular Act, the scope of the said order (GSR 164) is not sufficient to guard against the subversive activities of foreigners. It is confined only to rights deprived under the Defence of India Ordinance. GSR 1418 has a greater sweep and it takes in other rights. Though there is some overlapping, the two categories of personsforeigners and citizens-offer different security and ot~ problems. Both the orders are mainly intended to operate in different fields and their scope is differ~nt. We, therefore, do not see any merit in this contention also. , It is then argued that the President's order GSR 1276 dated 27-8-1965 has no retrospective effect and, therefore, the petitioner is entitled to move the court'. GSR 1276 was issued on 27-8-1965 lllllending the earlier ord~r by including Art. 14 therein. After - 27-8-1965, therefore, no foreigner has the right to move the Court though his fundamental right under Art. 14 of the Constitution ·is violated. In that sense, the order is not rctros1'ective but prospective. It only operates on the right of a person to move the Court. As the petitioner in the present case filed his petition on 12th May, 1966, that is subsequent to the promulgation of the order, he has ceased to have any right to move this A B c D E F G H **A** **B** c **D** E F G # **H** GHULAM SARWAR \', UNION _(Bdchawat,_ J.) ~S3 Court. The fact that he complained of his detention for a period earlier to that date has. no hearing on the question of the maintainability of the petition. This contention has also no merits. Lastly, it was contended that the order detaining him was vitiated by _ma/a fides._ The argument of _ma/a fides_ was put thus : The petitioner was prosecuted and tried for an offence under the Sea Customs Act. He was sentenced to 9 months imprisonment and to fine. He paid the fine and served his sentence. He was arrested pending the criminal case. He was let on bail on 18-3-1965. but before he left the jail he was detained under the Foreigners Act. It was said that the detention was 'not for any purpose connected with the security of the State, but only with a view to make investigation in respect of a case of conspiracy of smuggling gold into India of which, it is alleged, the petitioner was one of the conspirators. As there are other effective provisions of the Code of Criminal Procedure to conduct the said investigation, the argument proceeded, the detention of the petitioner in the said circumstances was an abuse of powers under the Foreigners Act. It was further contended that s. 3 of the Foreigners Act was intended for regulating the entry and the exit of foreigners into and out of India, that it had nothing to do with the investigation of cases, and that therefore, the detention under that Act for the sole purpose of investigation was _ma/a fide._ The order of detention dated 18th September, 1964 reads: "In exercise of the powers conferred by sub-section (I) read with clause (g) of sub-section (2) of section 3 of the Foreigners Act, 1946 (31 of 1946) the Central Government hereby orders that Shri Ghulam Mohuddin a Pakistani ~tional shall be arrested and detained until further orders." Clause (g) enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can be detained. If, as the respondent says, the petitioner is involved in a serious· case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct, we do not see why the wide power conferred on the Central Government to detain him under clause (g) could not be invoked. There is no merit in this contention also. Jn the result, the petition is dismissed. **Bachawat,** **J.** The order of Khanna, **J.** dismissing the writ petition filed by the petitioner in the Punjab High Court challen!!ing the legality of the detention order passed by the Central Government under s. 3(2)(g) of the Foreigners Act, 1946 and asking for the issue of a writ of _habeas corpus_ is not a judgment, and does not operate as _res Judicata._ That order does not operate as a bar to the application under Art. 32 of the Constitution asking for the issue of a writ of _habeas corpus_ on the same facts. The petitioner 284 SUPREME COURT REPORTS [ 1967] 2 S.-:.R• has fundamental right to move this Court under Art. 32 for the issue of a writ of _habeas_ _corpus_ for the protection of his right of liberty. The present petition must, therefore, be entertained and examined on the merits. Order .35, Rule 3 of the Supreme Court Rules provid•s that a petition for a writ of _lrobeas_ _corpus_ under Art. 32 shall state whether the petitioner has moved the H;gh Court concerned for similar relief and if so, with what result. This rule is a salutarv safeguard against an abusive use of a petition for the issue of a writ of _habeas_ _corpus_ under Art. 32. The previous dismissal of a petition for a writ of _habeas corpus_ by a High Court is one of the matters which this Court may take into consideration at the preliminary hearing of the writ petition under Art. 32 in forming the opinion whether ·a _prima faciP_ case for granting the petition is made out, and if on a consideration of all the materials the Court comes to the conclusion that a _prima facie_ case is not made out, the Court may refuse to issue a rule _nisi_ under O· 35. r. 4. The petitioner did not previously move this Court for the issue of a writ of _habeas corpus_ challenging the legality of the order of detention under s. 3(2)(g) of the Foreigners Act. He has, therefore. the right to move this Court for the issue of the writ. But he has not right to move this Court unC.:er ~rt. 32 more than once on the same facts. Having heard the petitiorer fully on the merits once, the Court will not hear him again on the same facts. It is to be noticed that the present petition does not challenge the validity of an order of imprisonment passed in a criminal trial. I must not )>e understood to say that the remedy of a writ of _habeas_ _corpus_ is available to test the propriety or legality of the verdic1 of a competent Criminal Court. The petitioner challenges the legality of the order, GSR 14 I 8 dated October 30, 1962 in respect of foreigners passed by the President under Art. 359(1) of the Constitution on the ground that it is discriminatory and violative of Art. 14. The argument is :his : Article 359(1) does not operate of its own force. The President has to make an order under it declaring that the right to move a Court in respect of a fundamental right in Part III is suspended. The order of the President under Art. 359( I) is a law within the meaning of Art. 13(2). An order under Art. 359(1) which takes away or abridges a fundamental right is void under Art. 13 (2). Therefore, the validity of an order under Art. 359(1) may be questioned if it abridges or takes away a fundamental right other than the right under Art. 19 which is already susper.ded under Art. 358. On the other hand, the respondent's argument is this: An order of the President under Art. 359(1) suspending the right A c D E F G #### · H A B c D E F GHULAM SARWAR _v._ UNION _(Bachawat,_ J.) 285 to move this Court for the enforcement of any right conferred by Part III necessarily abridges the right conferred by Art. 32. If the order of the President under Art. 359(1) is a law within the meaning of Art. 13(2), the. Presider.! can never make a valid order under Art. 359( I). This is _reductio ad_ _absurdwn._ It is impossible to hold that the President can never make a valid order under Art. 359(1). The conclusion must be that an order of the President under Art. 359(1) is not a law within the meaning of Art. 13(2). Again, an order of the President suspending the right to move any Court for the enforcement of the right conferred by Art. 14 substantially abridges the right conferred by Art. 14. If the remedy is totally suspended, the right is temporarily abridged. If the President's order under Art. 359( I) is a law within the meaning of Art. 13(3)(a) the President can never make an order under At t. 359(1) suspending the right to move any Court for the enforcement of the right under Art. 14. This is an impossible conclusion, because by the very terms of Art. 359(1 ), the Presid~nt is given the right to pass an order suspending the right to move any Court for the enforcement of the right conferred by Art. 14. An order which by the express words of Art. 359(1) can abridge or take away a right albeit temporarily cannot be held to be void on the ground that it infringes that right. The context of Art. 359(1) requires that an order of the President cannot be a law within the meaning of Art. 13(2). I do not propose to decide in this petition which of the two opposing contentions should be accepted. Even assuming for the purpose of this case that the President's order under Art. 359(1) is a law within the meaning of Art. 13(2) and can be pronounced to be invalid on the ground that it abridges or takes away the right conferred by Art. 14, I am of the opinion, for the reasons given by the learned Chief Justice, that the President's order is not discriminatory and is not violative of Art. 14. I agree with the conclusions of the learned Chief Justice on other points and the order proposed by him. V. P. S. _Petition dismissed_