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Union of India V. Bhanudas Krishna Gawde (1977)

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Citations: Union of India v. Bhanudas Krishna Gawde, (1977) 1 SCC 834

Date of Judgment: 25/01/1977

Equivalent citations: 1977 AIR 1027, 1977 SCR (2) 719

Case No: Criminal Appeal no. 310 of 1976

Case Type: Criminal Appeal

Petitioner: Union of India

Respondent: Bhanudas Krishna Gawde and others

Bench:

  • Hon’ble Justice Jaswant Singh
  • Hon’ble Chief Justice A.N. Ray
  • Hon’ble Justice M. Hameedullah Beg

Court: The Supreme Court of India

Statutes Referred:

  • Section 5 of The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974
  • Articles 226 and 227 of the Constitution
  • Articles 14, 19, 21, 22 of the Constitution (Fundamental Rights)
  • Articles 352, 353, 358, 359 of the Constitution (Emergency Provisions)
  • Sections 5 and 12 of The Prisons Act, 1894

Cases referred:

  • Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207
  • A.K. Gopalan v. State of Madras, AIR [1950] SC 27
  • Kharak Singh v. State of U.P, [1964] 1 SCR 332
  • C. Golakanath v. State of Punjab, [1967] 2 SCR 762
  • Kesavananda Bharati Sripadagalvaru v. State of Kerala, [1973] 4 SCC 225
  • Haradhan Saha v. The State of West Bengal & Ors., [1975] (1) SCR 778

Facts:

  • The President proclaimed Emergency on June 27, 1975 and January 8, 1976 by issuing an order under Article 359 (1) of the Constitution.
  • The State Government preventively detained the respondent, Bhanudas Krishna Gawde as a security prisoner and treated him as convicted criminal as per the Maharashtra Conditions of Detention Order, 1974.
  • Aggrieved by this, the detenus filed writ petitions in High Court of Bombay under Articles 226 and 227 of the Constitution.
  • The High Court struck down the Order as ultra vires via an impugned order.
  • The judgment of High Court was then challenged by the Union of India and an appeal was filed by the same in this regard in the Supreme Court.

Issues Involved:

  1. Whether in view of the orders by the President under Article 359 (1) of the Constitution, the abovementioned writ petitions under Articles 226 and 227 of the Constitution were maintainable?
  2. Whether the High Court of Bombay had the authority to strike down the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974?

Contentions of Appellant:

The Counsel for the Appellant contented that-

  • Articles 14, 19, 21, 22 of the constitution have been suspended by the President by way of issuing order of Proclamation of Emergency under Article 359(1). Owing to such suspension, and enforcement of Article 352, no person has the locus standi to approach the court under Article 226 and 227 of the constitution for issue of writs, orders and directions to enforce any Right to personal liberty.
  • As the application was not maintainable, The High Court was not competent to deal with the Order (1974), let alone strike it down.

Contentions of the Respondent:

The Counsel for the Respondent contented that-

  • Prevention detention does not stand on the same pedestal as punitive detention. As the detenus were preventively detained, they cannot be punitively treated.
  • The considerations for application seeking relief are not relevant to the applications concerning conditions of detention.
  • The principles of legality and doctrine of ultra vires cannot be revoked even during the times of emergency and power exercised under Section 5 of the Act i.e. The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 must have a reasonable nexus with the purpose for which the power is being conferred.
  • According to the case of ADM, Jabalpur vs. Shivkant Shukla (AIR 1976 SC 1207), even the issuance of Habeas Corpus is permitted if the order is not authenticated, then the conditions of detention can certainly be scrutinized and thus relief can be granted accordingly.
  • The High Court of Bombay is certainly correct in its order of striking down the clauses related to the conditions of detenus of Order, 1974 as such clauses are ultra vires and violative of the principles of reasonableness and legality.
  • A Curtain cannot be drawn around the detenu by cutting off all his contacts, be it objectionable or not.
  • The detenu should be governed by The Prisoners Act, 1864 if the place mentioned to detain him is Prison and not if place of his detention is not specified as Prison.
  • The echoes of the grievances of detenus are not of the Articles in Constitution but are of ‘totality’ law.
  • The submission that what is not included in Article 19 is contained in Article 21 is not correct as it ignores the Article 15, 25 and 26 of the Constitution which are applicable even to non-citizens.

Counter Arguments of the Appellant:

The counsel of appellant while replying to the contentions of the respondent said-

  • Owing to the little scope of generalization, the difference between preventive and punitive detention becomes elusive when it comes to the conditions of detenus.
  • Certainly there is a difference between application for total release and regulation of the conditions of detenus, but after the issuance of the order by the President proclaiming emergency under Article 359(1) of the Constitution, the former as well as the later is not available and thus cannot be enforced by moving the Court.
  • Legality has to be understood as meaning the authority of law and if so, the detenus cannot complain regarding their conditions in accordance to Order, 1974. Also, the principles of reasonableness and doctrine of ultra vires are not applicable to the legislation made during the emergency.
  • The observations made by the majority in the ADM, Jabalpur vs. Shivkant Shukla (AIR 1976 SC 1207), regarding area of judicial interference relate to the eases where the Executive would not and could not seek to defend the detention order and thus cannot assist in the present case where the detenu himself is seeking relief by enforcing a right which is not conferred to him by law.
  • It is essential to draw the curtain around the detenu to ensure the effectiveness of detention when it concerns the interests of national security.
  • The fact that a person is detained owing to administrative convenience does not imply that he is a civil prisoner and The Prisoners Act applies on him.
  • The Court cannot grant relief by relying merely on the philosophical theories like ‘totality of law’ which are vague and indeterminate.
  • Reference to the Articles 15, 25, 26 completely ignores the fact that these rights postulates a free citizen and cannot be enforced independently of Articles 14 and 21 of the Constitution. Also, the rights claimed by the detenus in the present case have no relation to these articles.
  • The necessity of provisions like consulting a private doctor in absence of official one, supplementing the diet on medical grounds, or to indulge in harmless pastime activities as chess or to appear in examinations , in the conditions of detention are matters for which the appropriate government should be approached instead of Courts.

Judgment:

In view of the orders by the President under Article 359 (1) of the Constitution, the supreme Court held writ petitions under Articles 226 and 227 of the Constitution were not maintainable and it was also held that the High Court of Bombay had the no authority to strike down the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 in lieu of the Presidential Order of proclamation of Emergency under Article 359(1) of the Constitution.

Ratio Decidendi:

  • While analyzing the provisions of the Constitution related to emergency, the Supreme Court mentioned the notable difference between Article 358 and 359(1) and thus stated that whereas Article 358 gives the power to legislature and executive to suspend Article 19, Article 359(1) provides the suspension of the right to move court for violation of fundamental rights during emergency. The object of Article 359(1) is to curb the check on the actions of executive.
  • Analyzation of the previous and Present presidential orders under Article 359(1) by the Court leads to the conclusion that Presidential Orders, dated June 27, 1975 and January 8, 1976 are different from the previous such orders as the present orders are not dependent upon the fulfillment of any condition precedent and impose a total or blanket ban on the enforcement of fundamental rights under Articles 19, 21, 22 of the Constitution which comprised all aspects of personal liberty.
  • The Principles of legality and doctrine of ultra vires are of no relevance in regard to legislative or executive action taken in times of national emergency in the interests of the national security.
  • In situations of Emergency, the locus standi of the person to move the court in cases of grievances and the competence of courts to take action for them is impaired by the provisions of the Constitution.
  • If any pre-existing has been elevated as a fundamental right by its incorporation in Part-III, the pre-existing right and the fundamental are considered to be grouped together as fundamental rights. Thus Article 19, 21 and 22 of the Constitution covers all sources of rights that constitute as personal liberty.
  • The minimization of the outside contact with the detenus is consistent with the object of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974. Thus, it rests upon the state government, who possess all the related information along with problems, to regulate the conditions of detenus.
  • The mere fact that a detenu is confined in prison does not entitle him to be treated as a ‘civil prisoner’ and to be governed by The Prisoners Act.
  • The asked relief by the detenus through aid of Court for providing facilities to him to be taken from place of detention to his home or examination hall, medical services from personal doctor, etc would be the enforcement of fundamental rights in the name of aid from Court.
  • It is open to the administrative authorities to provide such relief as advised under the provisions of the Act. But if the authorities do not provide such, the detenus cannot approach Court for the same as it is not permissible under the current circumstances.

Obiter Dicta:

N/A

Conclusion:

The case of Union of India vs. Bhanudas Krishna Gawde (1977) 1 SCC 834 is crucial within the context of the rights conferred to people in the circumstances of Proclamation of Emergency by the President under Article 359(1) of the Constitution. In this case, the Supreme Court while specifying the Articles 358 and 359(1), highlighted the rights conferred to people during National Emergency.

By focusing on the objective of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 and the provisions of Emergency imparted in Constitution, the Court also throws light on its inability to take any action or measure for the aggrieved people who knock its door with the hope of relief.

Drafted By: Purva

student of Dr. B.R. Ambedkar National Law University, Sonepat

Published on: February 10, 2024 at 00:20 IST