In this case, The Apex Court interpreted the provisions of Article 13(2) and Article 359 of the Indian Constitution and harmonised them to avoid a head-on clash and to give effect to both the provisions of the Indian Constitution.
The main attack of the petitioners is on the order of the President passed on November 3, 1962, as amended on November 11, 1962, under Art. 359(1) of the Constitution. By this order the President declared that the right to move any court for the enforcement of the fundamental rights conferred by Art. 14, 21 and 22 of the Constitution would remain suspended for the period during which the Proclamation of Emergency issued under Art. 352(1).
Art. 359(1) states “Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.”
Art. 352(1) states “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.”
Writ petitions (Habeas Corpus) before Supreme Court were filed under Article 32 of the Indian Constitution. The Question was whether order passed by President under Article 359 suspending fundamental rights during emergency a law under Article 13 (2) and needs to pass test provided under Article 13 (2) before being issued?
Article 13(2) states “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
The Hon’ble Supreme Court stated that the President is empowered under Article 359 to suspend enforcement of any fundamental rights during proclamation of emergency. Articles 13 (2) and 359 stand on equal footing and the provisions have to be read harmoniously in order that intention behind Article 359 is not destroyed. Principle of harmonious construction is to be applied in this case. order passed under Article 359 cannot be ‘law’ for purpose of Article 13 (2) .Order to be a law for all other purpose .Order to derive its force from Article 359 itself and taking effect in accordance with its tenor and cannot be affected or tested by Article 13 (2) or any provisions of Part 3 of Constitution . There is no need to have any nexus between a particular fundamental right suspended by order and reasons for which emergency proclaimed.
The Apex Court held order of arrest and detention passed during proclamation of emergency and order passed by President under Article 359 both valid.
BY: ANKIT RAJPUT
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