Mohd. Yaqub V. State of Jammu and Kashmir (1968)

Citations: Mohd. Yaqub vs. State of Jammu and Kashmir, AIR 1968 SC 765

Date of Judgment: 10/11/1967

Equivalent citations: 1968 SCR (2) 227, (1968) 2 SCJ 914

Case No: N/A

Case Type: N/A

Petitioner: Mohd. Yaqub, Etc.

Respondent: State of Jammu and Kashmir

Bench:

• Hon’ble Justice K.N. Wanchoo
• Hon’ble Justice M. Hidayatullah
• Hon’ble Justice J.C. Shah
• Hon’ble Justice R.S. Bachawat
• Hon’ble Justice V. Ramaswami
• Hon’ble Justice G.K. Mitter
• Hon’ble Justice K.S. Hegde

Court: Supreme Court of India

Statutes Referred:

• Constitution of India Article. 13(2), 14, 21, 22, 22(5), 31, 166 and 359(1)
• Rule 30(1) (b) of the Defense of India Rules, 1962

Cases referred:

• Ghulam Sarwar v. Union of India [1967] 2 S.C.R. 271 (Overruled)

Facts:

• This case involves twenty one petitions filed under Article 32 of the constitution for a writ of habeas corpus, raising common questions of law and having similar facts.
• The petitioners mainly challenged the order of the President of declaring emergency under Article 359(1).
• The said petitioner, Mohd. Yaqub was detained on 11 November 1966 by an order passed under Rule 30(1) (b) of the Defense of India Rules, 1962.
• Even though the order was reviewed after six months, no opportunity was given to the petitioner to represent his case before the reviewing authority. Thus the order had declared illegal after first six months.
• The State Government while cancelling the earlier order on August 3, 1967, passed a fresh order of detention against the petitioner on the same day.
• The petitioner thus challenged the fresh order of the state government in the present case.

Issues Involved:

1. Whether the president can suspend the fundamental rights of constitution which are not in nexus with the reasons of proclaiming emergency while exercising his power of declaration of emergency under Article 359(1)?
2. If any fundamental right is suspended owing to the order passed by President under Article 359(1), whether the order can be tested under the very fundamental right which it deems to suspend (Article 14 in the present case)?
3. Whether the new order of the state government is valid?

Contention of the Petitioner:

The counsel for petitioner contented that-

• The President is an “Authority” within the meaning of Article 12 and therefore comes under the definition of “State“. Accordingly the order passed under Article 359 is a law within the meaning of Article 13(2) of the Constitution and thus is liable to be tested under the fundamental rights enshrined in the Constitution.
• As order passed under Article 359(1) is within the context of the emergency, only those fundamental rights which is in the nexus of proclaimed emergency can be suspended and not others. Thus President can only suspend Article 22 and Article 31(2) under the said provision.
• Even if President by issuing order under Article 359(1) can suspend any fundamental right, the order can still be tested under the fundamental right which has been suspended.
• The given order by President can be challenged under Article 14 and if done so, the order is violative of Article 14 as there is discrimination. Persons can be detained under the Defense of India Act, 51 of 1962 and the Rules as well as under the Preventive Detention Act. This gives drastic and arbitrary powers to execution due to lack of clear indication.
• There is no express provision of the suspension of fundamental rights vested in Articles 14, 21 and 22 in the Act and the Rules in effect under the order.
• The order of the President under Article 359(1) should be communicated to the detenue as under Article 22(5).
• The fresh order had not been communicated to the detenue, and thus is of no effect.
• The state government is required to prove that the order had passed through proper authority for it is not in the form as required under Article 166 of the constitution.
• The fresh order was mala fide.

Contentions of the Respondent:

The Counsel for respondent countered the petitioner’s arguments by saying that-

• Once the President pass an order under Article 359(1) and order the suspension of any fundamental right, it cannot be relied upon that fundamental right in any manner. Thus the order under Article 359(1) cannot be testified under the very fundamental right, the enforcement of which has been suspended by it.
• The communication of the order of detention had been made to the detenue.
• Article 166 has no application in the State of Jammu and Kashmir, thus the order was in form required by the constitution of Jammu and Kashmir.
• The allegations of mala fide order had been denied.

Judgment:

The Court held that there is no need to inquire whether the fundamental rights suspended have any nexus with the declaration of emergency. The order passed by the President under Article 359(1), suspending any fundamental right cannot be testified and challenged under the very fundamental right, enforcement of which it deems to suspend and the new order of the state government had been declared valid and thus the petitions were being dismissed.

Ratio Decidendi:

• Article 359(1) gives categorical power to the President to suspend the fundamental rights enshrined in the Part-III of the constitution. The basic assumption to proclaim emergency is to safeguard the security interests of the country. Thus, it is unnecessary to inquire whether the suspended rights have nexus with the declared emergency. Article 359 provides for the power to president to suspend not only Article 22 and 31(2), but any fundamental right in the interest of security of India.
• Article 359(1) gives the president powers to suspend the enforcement of fundamental rights in case of emergency and if the order under this is a law within Article 13(2), it would mean that the order while suspending the fundamental rights can still be tested under them, thus order passed under Article 359(1) cannot be considered a law within Article 13(2) as that would make Article 359(1) nugatory. Thus by applying the principle of harmonious construction, it can be said that order under Article 359(1) is not a law within Article 13(2).
• An order passed under Article 359(1) suspending the enforcement of a particular fundamental right cannot be tested under that very fundamental right.

The validity of the order cannot be tested under that Article 14 if it has already suspended its enforcement.

• As the President’s order provide that the fundamental rights under Article 14, 21, 22 of the Constitution would suspend if the person has been deprived of the same under the Act and the Rules, it is not necessary to make an express provision for their suspension.
• As per the order under Article 359(1), the Article 22 has been suspended in its entirety. Therefore the applicability of Article 22(5) is out of question.
• There is no reason to disbelief the state’s statement of communicating the order to the detenue as the new order was issued on the same day, the previous one was cancelled.
• Article 166 does not apply to the state of Jammu and Kashmir. The order needs to be in the form of Section 45 of the constitution of state of Jammu and Kashmir. Thus there would be a presumption of validity of the order and it is on the petitioners to show the evidence against it, which has not been done by them.
• There are no grounds to belief that the passed fresh orders were mala fide. The fresh order was only issued as the review was not made according to the procedure.

Obiter Dicta:

N/A

Conclusion:

The case of Mohd. Yaqub vs. State of Jammu and Kashmir is a crucial case associated with the proclamation of National Emergency in India. In this case, the Supreme Court held that order under Article 359 (1) by the President is not a law within Article 13(2) and therefore it cannot be challenged under Part-III of the Constitution. Thus, if enforcement of any fundamental right (Article 14 in the present case) is being suspended by the order, it cannot be tested under the very fundamental right, the enforcement of which has been suspended by its effect.

This case also overrules the case of Ghulam Sarwar v. Union of India which provides a distinction between the President’s order itself under Art. 359 and the effect of that order. As per the same, it was held that the President can only make an order which is a valid one. It was further observed that an order making an unjustified discrimination in suspending the right to move a court under Art. 14, would be void. But in the present case, the Supreme Court said that it is a complicated reasoning and refused to appreciate the same.

Drafted By: Purva Singla

Published on: February 8, 2024 at 12:54 IST