Article 32
Article 226
Article 32 of the Constitution is itself a Fundamental Right while Article 226 is a Constitutional Right.
Article 352 of the Constitution (“war or external aggression or armed rebellion-“internal disturbance”)
When Emergency under Article 352 of the Constitution is declared by the President, the provisions of Article 19 of the Constitution stand automatically suspended under Article 358 of the Constitution, and remain so suspended during the entire period of Emergency.
Article 359 of the Constitution provides that when Emergency under Article 352 of the Constitution is declared by the President, the President may be Order declare that “the right to move any Court for the enforcement of such of the Rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order.
Article 358 suspended rights conferred by Article 19, Article 359 suspended only remedy and not the rights.
8th September, 1962, China attacked the northern border of India
26th October, 1962, the President issued a proclamation under Article 352 of the Constitution
Defence of India Ordinance No. 4 of 1962 was promulgated by the President.
December 12, 1962, the Defence of India Act, 1962 came into force.
said two Presidential Orders in 1962 were issued under Article 359(1) of the Constitution (as it then existed), the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution was suspended.
Facts:
Article 352-Proclaim emergency on 26 Oct, 1962.
The Defence of India Ordinance 1962 (Art. 359 used)
Detained.--posed a threat to the security of the country.
Court-High Court Dismiss
Allahabad Court in similar case-favour the detenues.
Matter-SC
Arguments:
Detention Ground: Vague
Main Issues?
True Scope & effect of president order issued under Article 359(1)
Bar? Art. 226? CRPC Section 491 (of 1898, old one)
Decision?
If a person moved any Court to obtain a relief on the ground that his fundamental rights specified in the Order had been contravened, that proceeding was barred.
if in challenging the validity of his detention order, the detenu was pleading any right outside the rights specified in the Presidential Order, his right to move any court in that behalf was not suspended, because it was outside Article 359(1) and consequently the Presidential Order.
(a) Where a detenu was detained in violation of the mandatory provisions of the Preventive Detention Law, the detention order could be challenged on the ground that it was in contravention of the mandatory provisions of the Preventive Detention Law.
(b) Where the detention order was ordered malafide, the detenu could challenge the same on the ground that a malafide order was outside the scope of the Preventive Detention Law.
(c) If the detention under the Preventive Detention Law could be ordered on certain specified grounds, and the detention order was passed on a ground not covered in such specified grounds, the detenu could challenge his detention on the said ground
As a whole:
right of a person to move any court for enforcement of specified fundamental rights conferred by Part III of the Constitution was suspended.
However, if a right falling outside the scope of specified fundamental rights was sought to be enforced, a detenu could move a High Court under Article 226 of the Constitution for enforcement of such right
Facts:
Detained.
Prabhakar wrote, with the permission of the said Government a book in Marathi under the title “Anucha Antarangaat” (Inside the Atom).
In 1964: applied for publication-rejected.
Again in 1965-state govt & Superintendent-rejected.
Filed writ under Article 226.
Decision?
no rules prohibiting a detenu from sending a book outside the jail with a view to get it published.
Allowed to publish the book
Challenged in SC-but appeal dismiss.
1971 Emergency
1975-Allahabad Court- Malpractices-Guilty
1975 Emergency, order under 359
July, 1975-38th Amendment-Post Emergency challenges.
made the declaration of "The Emergency" final and conclusive
The Amendment barred judicial review of proclamations of emergency whether made to meet external, internal, or financial threats
August, 1975-39th Amendment-Post Emergency challenges.
placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts
1976-42 Amendment-
It attempted to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws.