Majority view: Justice Ray: CJ:—First, In view of the Presidential Order dated 27 June, 1975 under clause (1) of article 359 of our Constitution no person has locus standi to move any writ petition under article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act, on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act, or is illegal or mala fide.
Second, Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of article 21 and, is, therefore, barred by the Presidential Order.
Third, Section 16A(9) of the Act, is valid. It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention.
Fourth, It is not competent for any court to go into questions of mala fides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.
Minority view (Justice Khanna)
1. The Order issued by the President on June 27, 1975 under article 359(1) of the Constitution does not suspend the fundamental principle that all executive actions must have the authority of law to support it. Nor does the Presidential Order give to the executive a charter to disobey the laws made by the Parliament, which is the supreme law-making authority.
2. The aforesaid Presidential Order, however, deprives a person of his locus standi to move any Court, be it the Supreme Court or the High Court, for the enforcement of his fundamental rights which are mentioned in the Order. Such deprivation or suspension enures during the period that the Proclamation of Emergency is in force or for such shorter period as may be specified in the Order.
3. The dominant purpose of the petitions filed by the respondents in the High Courts is to obtain an order of release from detention by enforcing the right of release from detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed. The former plea is barred by reason of the Presidential Order. The latter plea is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for.
4. The Presidential Order dated June 27, 1975 bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides, factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material.
5. Whether or not article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under article 226 of the Constitution for the release of a person detained under the MISA, no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any Court to ask for such relief. The Presidential Order takes away such legal capacity by including article 21 within it. The source of the right to personal liberty is immaterial because the words ‘’conferred by’’ which occur in article 359(1) and in the Presidential Order are not words of limitation.
6. The Presidential Order does not bring about any amendment of article 226 and is not open to challenge on that ground.
7. The Presidential Order neither bars the right of an accused to defend his personal liberty in the Court of first instance or in a higher Court, nor does it bar the execution of decress passed against the Government, nor does it bar the grant of relief other or less than the release of the detenu from detention.
8. Section 16A(9) of the MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under article 226. There is no warrant for reading down that section so as to allow the Court to inspect the relevant files to the exclusion of all other parties.
9. Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation.
Source: M A Rashid, Supreme Court Guidelines and Precedents