B. J. DIVAN, T. U. MEHTA, J. ( 1 ) * * * * ( 2 ) BEFORE we come to discuss the merits of the case we will take up three preliminary contentions which have been urged before us on behalf of the Union of India and the State of Gujarat by the respective counsel. These three preliminary contentions are as follows (1) This petition which challenges the original order of detention passed by the first respondent on September 22 1974 is not maintainable after the Advisory Board gave its report and the State Government acting on that report had made an order under sec. 12 of the M. I. S. A. confirming the order of detention and directing continuance of the detention. (2) In view of the suspension of pending proceedings for enforcement of the rights under Arts. 14 21 and clauses (4) (5) (6) and (7) of Art. 22 by the Presidential Order dated November 16 1974 issued under Art. 359 (1) the present petition requires to be scrutinized to find out whether in substance intent and purpose it is a petition for enforcement of rights under the suspended clauses of Art. 22. It was contended in this connection that in this particular case in sub stance and intent this Special Criminal Application seeks the enforce ment of the fundamental rights under Art. 22 and therefore the hearing of the petition should be suspended for the period mentioned in the Presidential Order dated November 16 1974 (3) While the Presidential Order is in force the High Court cannot issue any writ of habeas corpus or any other writ order or direction under Art. 226 releasing the detenu unless the case falls under any one of the following three exceptions namely: (a) detention is in clear contravention of the mandatory provisions of M. I. S. A. (b) detention is mala fide and (c) the M. I. S. A. is held to be ultra vires or sec. 3 (1) (c) inserted by Ordinance 11 of 1974 into M. I. S. A. is held to be ultra vires. ( 3 ) REGARDING Ground (1) it was contended that once the case of a particular detenu has been considered by the Advisory Board constituted in accordance with the provisions of M I. S. A. and under sec. 3 (1) (c) inserted by Ordinance 11 of 1974 into M. I. S. A. is held to be ultra vires. ( 3 ) REGARDING Ground (1) it was contended that once the case of a particular detenu has been considered by the Advisory Board constituted in accordance with the provisions of M I. S. A. and under sec. 12 (1) the State Government has passed an order of confirmation of the order of detention and has directed that the detention should be continued the original order of detention ceases to exist and it is replaced by an order passed under sec. 12 (1) In order to appreciate the contentions urged on behalf of one or the other of the respondents in this connection it is necessary to refer shortly to the scheme of the M. I. S. A. ( 4 ) THE detention order under sec. 2 (b) means an order made under sec. 3. Under sec. 3 (1) (c) of the M. I. S. A. so far as is relevant for the purpose of discussion in this judgment the Central Government or the State Government may if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from smuggling goods or abetting other persons to smuggle goods or dealing in smuggled goods it is necessary so to do make an order directing that such person be detained. Under sec. 3 (2) a District Magistrate an Additional District Magistrate specially empowered in this behalf by the State Government and Commissioners of Police wherever they have been appointed have been empowered to exercise the power conferred by sec. 3 (1 ). It may be pointed out that after the amendment introduced by sec. 6 of the Defence of India Act the powers of the different officers mentioned in sec. 3 (2) are co-extensive with the powers exercisable by the central Government and the State Government so long as the Defence of India Act is on the statute book. Under sec. 3 sub- sec. (3) when any order is made under sec. 3 (1) by an officer mentioned in sub-sec. 3 (2) are co-extensive with the powers exercisable by the central Government and the State Government so long as the Defence of India Act is on the statute book. Under sec. 3 sub- sec. (3) when any order is made under sec. 3 (1) by an officer mentioned in sub-sec. (2) that officer has to forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. Thus it is clear that under sec. 3 (3) after the order of detention has been passed by a District Magistrate he has to communicate three things to the State Government namely: (a) fact of detention; (b) grounds of detention; and (c) such other particulars as in his opintion have a bearing on the matter; though so far as the detenu is concerned he is only in the first instance supplied with the order of detention and under sec. 8 (1) of the M. I. S. A. the detenu has to be supplied with the grounds on which the order of detention has been made. Therefore so for as the detenu is concerned such other particulars as in the opinion of the District Magistrate have a bearing on the matter v referred to in sec. 3 (3) are not required to be communicated to the detenu. Under sub-sec. 3 of sec. (4) the State Government has to report the factum of detention to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order. Now it is to be borne in mind that this requirement of commun ication by the State Government to the Central Government comes into effect when the order of detention has been passed by the State Government or an order passed by any of the officers men tioned in sec. 3 (2) has been approved by the State Government. Under sec. 8 sub-sec. 3 (2) has been approved by the State Government. Under sec. 8 sub-sec. (1) when a person is detained in pursuance of a detention order the authority making the order shall as soon as may be but ordi narily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. As we have emphasized earlier under sub-sec. (1) of sec. 8 what is required to be communicated to the detenu are the grounds on which the order has been made. Under sec. 10 the appropriate Government shall within thirty days from the date of detention under the order of detention place before the Advisory Board constituted by it under sec. 9 the grounds on which the order has been made and the representation if any made by the persons affected by the order and in case where the order has been made by an officer also the report by such officer under sub-sec. (3) of sec. 3. Thus the three requirements namely the fact of detention the grounds of detention and such other particulars as in the opinion of the detaining officer have a bearing on the matter are placed before the Advisory Board because those three elements go to make up the report under sec. 3 sub-sec. (3) and the entire report has to be placed before the Advisory Board. Sec. 11 provides for the procedure of the Advisory Board and the Advisory Board shall after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person submit its report to the appropriate Government within the weeks from the date of detention. Thus under sec. 11 it is open to the Advisory Board to call for further infor mation from the Government or from any other person or from the detenu himself. Thus under sec. 11 it is open to the Advisory Board to call for further infor mation from the Government or from any other person or from the detenu himself. Moreover it is open to the Advisory Board to hear the detenu and the hearing can be given either if the Advisory Board considers it essential so to do or if the detenu desires to be heard. Under sub-sec. (2) of sec. 11 the report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. Sub-sec. (4) of sec. 11 makes it clear that the detenu has no right to appear by any legal practitioner in any matter connected with the reference to the Advi sory Board and the proceedings of the Advisory Board and its report excepting that part of the report in which the opinion of the Advisory Board is specified are to be confidential. Sec. 12 sub-sec. (1) is in these terms :in any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may con. firm the detention order and continue the detention of the person concerned for such period as it thinks fit. The State Government may confirm the detention order or at any time acting under the powers conferred upon it under sec. 14 revoke the detention order or modify it and under sub-sec. (2) the revocation shall not bar the making of a fresh detention order under sec. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Govern ment or any officer as the case may be is satisfied that such order should be made. ( 5 ) IT was contended on the language of the different sections and particularly on the language of sec. 12 (1) that the order passed by the State Government confirming the order of detention and continuing the period of detention is a distinct order by itself passed in light of the opinion of the Board and therefore unless that order under sec. 12 (1) is challenged the original order of detention cannot be challe nged. 12 (1) that the order passed by the State Government confirming the order of detention and continuing the period of detention is a distinct order by itself passed in light of the opinion of the Board and therefore unless that order under sec. 12 (1) is challenged the original order of detention cannot be challe nged. It was contended in this connection that the order under sec. 12 (1) is passed after the detenu has made his representation and in any event there is a merger of the order of detention in the order under sec. 12 (1 ). ( 6 ) IT was also contended on behalf of the State Government by the learned Government Pleader in support of this contention that the order under sec. 12 (1) takes effect independently and therefore the two orders on under sec. 3 (3) and the other under sec. 12 (1) cannot simultaneously hold the same field. The learned Government Pleader also submitted that after the order under sec. 12 (1) has been passed by the Government the detention continues by virtue of that order and not by virtue of the order under sec. 351 ). He emphasized in this connection that the order of detention continues by virtue of the order under sec. 12 (1) and that is the only effective order that subsists at present after the order of confirma tion in the present case was passed by the State Government on November 12 1974 On behalf of the different respondents as regards this first preliminary objection it was contended that so long as the order under sec. 12 (1) is not challenged and not quashed and set aside no relief by way of habeas corpus can be granted in the present case. ( 7 ) CONSIDERABLE arguments were advanced before us by the learned Government Pleader based on the doctrine of merger. In Gajer Brothers v. Ratan Lal A. I. R. 1974 S. C. 1380 the Supreme Court has considered the question of the doctrine of merger of decrees and orders the discussion in the judgment of Chandrachud J. who delivered the judgment of the Supreme Court is to be found from paragraphs 10 to 18 of the judgment. In Gajer Brothers v. Ratan Lal A. I. R. 1974 S. C. 1380 the Supreme Court has considered the question of the doctrine of merger of decrees and orders the discussion in the judgment of Chandrachud J. who delivered the judgment of the Supreme Court is to be found from paragraphs 10 to 18 of the judgment. In paragraph 10 the juristic justification of the doctrine of merger has been pointed out to be in the principle that there cannot be at one and the same time more than one operative order governing the same subject matter. Therefore the judgment of an inferior court if subjected to an examination by the superior court ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words the judgment of the inferior court loses its iden tity by its merger with judgment of the superior court. ( 8 ) IN State of Madras v. Madurai Mills A. I. R. 1967 S. C. 681 Rama swami J. speaking for the Supreme Court has pointed out that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders one by the inferior authority and the other by a superior authority passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. ( 9 ) OUR attention was also drawn to the fact that in Motilal Jain v. Municipal Corporation. Ahmedabad (1971) 12 G. L. R. 640 S. H. Sheth J. sitting singly has applied the doctrine of merger even to administrative matters where there is an original order and an appellate order made by an appellate authority in pursuance of its statutory appellate power. This decision in Motilal Jains case was based on the observations of the Supreme Court in Somnath Sahu v. The State of Orissa (1969) 3 S. C. C. 384. This decision in Motilal Jains case was based on the observations of the Supreme Court in Somnath Sahu v. The State of Orissa (1969) 3 S. C. C. 384. In paragraph 25 of the judgment in Gajer Brothers case Chandrachud J. has referred to the decision in Somnath Sahu v. The State of Orissa and has pointed out that in Somnath Sahus case the doctrine of merger was applied to the case of an administrative order and it was held that as a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merged in the appellate decision and it was the appellate decision alone which was subsisting and was operative and capable of enforcement. ( 10 ) IT is no doubt true that the doctrine of merger can apply if there is an appellate authority and a subordinate authority. Even if the autho rity which passes the order in the first instance passes an administrative order if there is an appellate authority even by way of an appeal in administrative matters the decision of the authority of the first instance will merge in the decision of the appellate authority. But the question that we have to consider in the instant case is whether when the State Government passed an order under sec. 12 (1) after the opinion of the Advisory Board has been expressed to the effect that there is sufficient cause for the order of detention the State Government is acting as an appellate authority or whether it acts as a confirming authority. ( 11 ) THE Supreme Court itself has considered the nature and charac ter of the proceedings before the Advisory Board. In Dock Labour Board Calcutta v. Jaffar Imam A. I. R. 1966 S. C. 282 the Supreme Court considered as to what is the function of an Advisory Board constituted under the Preventive Detention Act 1950 It may be pointed out that the provisions of the Preventive Detention Act 1950 and of the M. I. S. A. regarding the Advisory Board are the same both being in conformity with the provisions of Art. 22 (4) of the Constitution. Gajendragadkar C. J. delivering the judgment of the Court has observed in paragraph 12 of the judgment at page 287 it is obvious that the Advisory Board does not try the question about the propriety or validity of the citizens detention as a Court of law would indeed its function is limited to consider the relevant material placed before it and the representation received from the detenu and then submit its report to the State Government within the time specified by sec. 10 (1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination its decision is essentially different in character from a judicial or quasi-judicial decision. In some cases a detenu may be given a hearing but such a hearing is often if not always likely to be ineffective because the detenu is deprived of an opportunity to cross-examine the evidence on which the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him. Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu it would we think be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal Court. It is true that these views were expressed while considering the contention urged on behalf of the employer in an industrial dispute where it was contended that the fact that order of detention was passed and was subsequently confirmed by the State Government on the opinion of the Advisory Board was by itself sufficient for discharging the employee or the workman concerned from service. However the Supreme Court has analysed the scheme of the provisions pertaining to the Advisory Board which were identical with the scheme which we find in the M. I. S. A. and with respect therefore we will follow the opinion expressed by the Supreme Court regarding the functions of the Advisory Board. However the Supreme Court has analysed the scheme of the provisions pertaining to the Advisory Board which were identical with the scheme which we find in the M. I. S. A. and with respect therefore we will follow the opinion expressed by the Supreme Court regarding the functions of the Advisory Board. Even apart from this decision of the Supreme Court in Dock Labour Board Calcutta v. Jaffar Imam it is obvious that an Advisory Board on such materials as are placed before it and it must be borne in mind that all the materials which are before the Board are not disclosed to the detenu submits its opinion as to whether there was sufficient cause for the detention of the detenu concerned. Thereupon it is for the State Government to pass the order confirming the order of detention and continuing the detention or revoking the order of detention as it thinks fit. It is further important to bear in mind in this connection that the stage of the expression of the opinion by the Advisory Board comes after the State Government has approved the order of detention in case the original order of detention was passed by one of the officers mentioned in sec. 3 (2) of the M. I. S. A. or after the State Government itself has passed the order of detention. In either case before the Advisory Board has expressed its opinion the State Government has also considered the representation made by the detenu concerned because under sec. 8 (1) the representation has to be made to the appropriate Government against the order of detention. Therefore when the State Government acts under sec. 12 (1) on the opinion of the Advisory Board and decides to confirm the order of detention and continue the detention of the person concerned it does so not as an appellate authority nor as a reviewing authority but having got the opinion of the Advisory Board that there was sufficient cause for the detention of the person concerned it decides to confirm the order of detention and continue the order of detention. Hence there is no question of any merger of the original order of detention in the order passed by the State Government. The contention that the order of the State Government under sec. Hence there is no question of any merger of the original order of detention in the order passed by the State Government. The contention that the order of the State Government under sec. 12 (1) confirming the order of detention and continuing the detention is an independent order cannot be accepted because all that the State Government does at the time when it passes the order under sec. 12 (1) is not to review the order but it decides whether in the situation which prevails when it passes the order under sec. 12 (1) it should confirm the order of detention and continue the detention or revoke the order of detention. If the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person it is obligatory under sec. 12 (2) of the M. I. S. A. to revoke the detention order and cause the person detained to be released forthwith. Therefore so far as the order under sec. 12 (1) is concerned it can only be passed when the Advisory Board functions within the narrow limits of sec. 11 and in its purely advisory capacity reports that there is sufficient cause for the detention of the person concerned the State Government can again apply its mind and decide whether the order of detention should be confirmed and detentton be continued. The doctrine of merger can have no place because the State Government does not review for itself the grounds of detention or the materials which were before the detaining authority at the time when it passed the order of detention. It is true as has been contended on behalf of the respon dents that Advisory Board is composed of persons with judicial experience and as pointed out by the Supreme Court in Bhut Nath v. State of West Bengal. A. I. R. 1974 S. C. 806 in paragraph 23 at page 814:- the advisory Board made up of men with judicial experience is required to have a quasi judicial approach. It is not a quasi-judicial body but from the com position of the Board and the subject matter with which it deals implies that it is required to have a quasi-judicial approach. It is not a quasi-judicial body but from the com position of the Board and the subject matter with which it deals implies that it is required to have a quasi-judicial approach. ( 12 ) RELIANCE on behalf of the respondents in this connection was also placed on some of the observations of Bhagwati J speaking for the Supreme Court in S. K. Sekawat v. The State of West Bengal Writ Petition No. 164 of 1974 decided on September 24 1974 It was pointed out in this judgment that the State Government have to apply its mind at the time of passing the order under sec. 12 (1) keeping in view all the facts and circumstances relating to the case of the detenu including the opinion of the Advisory Board and come to its own decision whether or not to confirm the order of detention. Therefore the State Government has before it at that time the representation of the detenu. The State Govern ment must consider it and take it into account for the purpose of deciding whether to continue the detention. The facts of that particular case were peculiar in the sense that the representation from the detenu was received after the Advisory Board had given its opinion about the sufficiency of the cause for the detention of the detenu and the State Government pro ceeded to confirm the order of detention under circumstances similar to sec. 12 (1) of the M. I. S. A. without considering the representation received from the detenu It is clear that the State Government did not consider the representation and thus failed in one of its obligatory duties with regard to the detention of the petitioner. The subsequent consideration and rejection of the representation of the detenu could not cure the invalidity of the order of confirmation. ( 13 ) WE may point out that the same view which we are taking regarding the order passed under sec. 12 (1) has also been taken by the Rajasthan High Court and by the Allahabad High Court regarding provi sions of a similar sec. 4 under the Preventive Detention Act. ( 13 ) WE may point out that the same view which we are taking regarding the order passed under sec. 12 (1) has also been taken by the Rajasthan High Court and by the Allahabad High Court regarding provi sions of a similar sec. 4 under the Preventive Detention Act. In Durg Singh v. State A. I. R. 1953 Rajasthan 177 in paragraph (19a) at page 180 Wanchoo C. J. speaking for the Division Bench of the Rajasthan High Court has observed it was pointed out on behalf of the State that the applicants case has been considered by the Advisory Board and the Board has confirmed the order of detention. That in our opinion makes no difference to the order that we are to pass in the circumstances of this case. We do not know anything about the proceedings before the Advisory Board. A similar contention was also urged before the Allahabad High Court in Prem Dutta v. Supdt. Central Prison. A. I. R. 1954 Allahabad 315 where the Allahabad High Court relying on the observations in paragraph (19a) in Drug Singhs case observed in paragraph 10 The Advisory Board has been constituted as a safeguard against a possible misuse of the power of preventive detention. The Advisory Board is not a judicial body; it does not follow strict judicial procedure: it is in fact in the nature of a body charged with the responsibility of advising the executive Government in regard to cases of preventive detention where it is intended that such detention shall last for more than three months. I cannot therefore accept the contention that we have any concern with the proceedings of the Advisory Board. The fact that the Constitution has provided an Advisory Board for advising on cases of preventive detention does not mean that the right of this Court to grant a writ of habeas corpus in cases where the initial arrest in the opinion of this Court was illegal or improper has been taken away. And the Allahabad High Court expressed its concurrence with the view expressed by Wanchoo C. J. in Drug Singhs case (supra ). It was pointed out further by the Allahabad High Court Art. 22 (4) lays down a restriction on any law providing for preventive detention. And the Allahabad High Court expressed its concurrence with the view expressed by Wanchoo C. J. in Drug Singhs case (supra ). It was pointed out further by the Allahabad High Court Art. 22 (4) lays down a restriction on any law providing for preventive detention. Unless that law makes provision for the report by an Advisory Board constituted in the manner prescribed the consequence is that the law itself in so far as it purports to authorise detention beyond three months would be invalid. Such a provision is to be found in sec. 8 of the Preventive Detention Act 1960 but neither that section nor clause (4) (a) of Art. 22 constitutes the Advisory Board a court of law or imposes on it the duty of determining whether a persons detention is legal. All that sec. 8 of the Act does is to constitute a body which as its name implies is a purely advisory body whose duty it is to advise the Government whether in its opinion there is sufficient cause for the continued detention of a particular person or persons. Its opinion cannot therefore in my view operate to oust the jurisdiction of this Court to determine whether the grounds upon which the petitioner was detained satisfied the requirements of the law. ( 14 ) APART from the authorities which we have so far discussed regarding the scope of the powers of the advisory Board and the nature of the functions which the Advisory Board has to perform on first princi ples it seems to us that when an order of detention has been confirmed and the detention has been continued what the State Government under sec. 12 (1) does is to support that which has been done in the first instance under sec. 3 (1 ). It is possible that the original order of detention may have been passed by the State Government itself. Even then under sec. 12 (1) on the receipt of the opinion of the Advisory Board it may decide to confirm the order of detention and continue the detention or may revoke the order of detention. Therefore it cannot be said that the order under sec. Even then under sec. 12 (1) on the receipt of the opinion of the Advisory Board it may decide to confirm the order of detention and continue the detention or may revoke the order of detention. Therefore it cannot be said that the order under sec. 12 (1) has been passed by the State Government as a superior authority or as an appellate authority In order to provide for the constitutional safeguards which have been pro vided for under Art. 22 (4) the provisions of the M. I. S. A. had to provide for an Advisory Board constituted as contemplated by Art. 22 (4) and therefore the Act has provided for the Advisory Board and also for the functions of the Advisory Board in the manner that the M. I. S. A. has done. Neither the Advisory Boards opinion nor the confirmation of the order of detention under sec. 12 (1) can render that which was originally bad or illegal or vitiated into a good order of detention. If the State Government decides under sec. 12 (1) to confirm the order of detention and to continue the detention all that it does is to continue doing that which was initially illegal if the Court comes to the conclusion that the original order of detention was illegal. The fact that the State Government has confirmed the order and has decided to continue the detention will not render the original detention legal or will not in any way justify the continued detention of that individual. The State Government under sec. 12 (1) merely decides to continue the original detention. If the original detention is bad then the decision of the State Government to confirm the order of detention and to continue the detention will not render that detention any the more legal. Under these circumstances even on first principles judging by the language used in sec. 12 (1) and the scope of the provisions of secs. 11 and 12 it is obvious that the contention based on sec. 12 (1) of the M. I. S. A. cannot be accepted. This argument is there fore rejected. Under these circumstances even on first principles judging by the language used in sec. 12 (1) and the scope of the provisions of secs. 11 and 12 it is obvious that the contention based on sec. 12 (1) of the M. I. S. A. cannot be accepted. This argument is there fore rejected. ( 15 ) THE second preliminary objection urged on behalf of one or the other respondents was that in view of the Presidential Order under Art. 359 (1) the present petition must be suspended and the contention was that in substance and in effect the petitioner in the present proceed ings wants to enforce his right under Art. 22. The Presidential Order dated November 16 1974 is in these terms : 1 In exercise of the powers conferred by clause (1) of Art. 359 of the Constitution the President hereby declares that (A) The right to move any Court with respect to orders of detention which haw already been made or which may hereafter be made under sec. 3 (1) (c) of the Maintenance of Internal Security Act 1971 as amended by Ordinance 11 of 1974 for the enforcement of the rights conferred by Art. 14 Art. 21 and Clauses (4) (5) (6) and (7) of Art. 22 of the Constitution and (B) All proceedings pending in any Court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said sec. 3 (1) (c) shall remain suspended for a period of six months from the date of issue of this order or the period during which the proclamation of emergency issued under caluse (1) of Art. 352 of the Constitution on the 3rd December 1971 is in force whichever period expires earlier. and by Clause 2 the Presidential Order has been extended to the whole of the territory of India. Presidential Order of this kind issued in the context of another emergency under Art. 359 (1) of the Constitution came up for consideration before the Supreme Court in several cases. ( 16 ) THE leading case on the point where the entire scope of the Presidential Order under Art. 359 (1)has been considered is Makhan Singh v. State of Punjab A. I. R. 1964 S. C. 881. ( 16 ) THE leading case on the point where the entire scope of the Presidential Order under Art. 359 (1)has been considered is Makhan Singh v. State of Punjab A. I. R. 1964 S. C. 881. The Supreme Court has exa mined the entire position regarding the scope of the Presidential Order under Art. 359 (1) of the Constitution and Gajendragadkar J. as he then was speaking for the majority of the learned Judges who heard the matter has pointed out in paragraph 19 as follows :the next question to consider is what is the nature of the proceedings which are barred by the Preeidential Order issued under Art. 359 (1 ). They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any Court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not what has to be examined is not so much the form which the proceeding has taken or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights that is proceeding which falls under Art. 359 (1) and would therefore be hit by the Presidential Order issued under the said Article. The sweep of Art. 319 (1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claim cannot be effectively adjudicated upon without examining the question as to whether the citizen Is in substance seeking to enforce any of the said specified fundamental rights. We have already seen that the operation of Art. 359 (1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force or for such shorter period as may be specified in the Order. That being so we feel no difficulty in holding that proceedings taken by a citizen either under Art. 32 (1) or under Art. 226 (1) are hit by Art. 359 (1) and the Presidential Order issued under it. The Supreme Court in Makhan Singhs case has also pointed out three exceptions to the wide sweep of Art. 359 (1) and the Presidential Order made under it. In paragraph 34 Gajendragadkar J. has pointed out that the argument that since the Ordinance which was succeeded by the Defence of India Act was invalid the Presidential Order cannot preclude a citizen from testing its validity must be rejected. However in paragraph (359) it was pointed out if in challenging the validity of his detention order the detenu is pleading any right outside the rights specified in the Order his right to move any Court in that behalf is not suspended because it Is outside Art. 359 (1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Art 359 (1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order. In paragraph 36 of the judgment it was further pointed out that if mala fide are alleged the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359 (1) and the Presidential Order. That is another kind of plea which is outside the purview of Art. 359 (1 ). In paragraph 38 it was pointed out there is yet another ground on which the validity of the detention may be open to challenge. That is another kind of plea which is outside the purview of Art. 359 (1 ). In paragraph 38 it was pointed out there is yet another ground on which the validity of the detention may be open to challenge. If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is therefore invalid the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presidential Order. In terms it is not a plea which is relatable to the fundamental rights specified in the said Order. It Is a plea which is independent of the said rights and its validity must be examined. It was because of these three exceptions pointed out by the majority of the learned Judges who decided Makhan Singhs case that the learned counsel for the Union of India in their submission were prepared to recognise three exceptions to the operation of the Presidential Order issued under Art. 359 (1) of the Constitution. ( 17 ) WE may point out that in a subsequent decision of the Supreme Court Ramaswami J. has pointed out two further exceptions to the scope of the Presidential Order issued under Art. 359 (1 ). In Durgadas v. Union of India A. I. R. 1966 S. C. 1078 Ramaswami J. speaking for the Court pointed out. . . a citizen will not be deprived of his right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide Similarly it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view and those two further exceptions to the operation of the Presidential Order issued under Art. 359 (1) have been pointed out in Durgadass case. ( 18 ) IN Ram Manohar Lohia v. State of Bihar A. I. R. 1966 S. C. 740 the Supreme Court considered the effect of the Presidential Order. In paragraph 4 Sarkar J. has observed if any person says as Dr. ( 18 ) IN Ram Manohar Lohia v. State of Bihar A. I. R. 1966 S. C. 740 the Supreme Court considered the effect of the Presidential Order. In paragraph 4 Sarkar J. has observed if any person says as Dr. Lohia does that he has been deprived of his personal liberty by an order not made under the Act or the Rules there is nothing in the Presidents Order under Art. 359 (1) to deprive him of his right to move the Court under Art. 32. The Court must examine his contention and decide whether he has been detained under the Act or the Rules and can only throw out his petition when it finds that he was so detained but not before then. If it finds that he was not so detained it must proceed to hear his petition on its merits. He has further observed in paragraph 5 here only a right to move a Court in certain circumstances has been taken away and the question is has the Court been moved on the present occasion in one of those circumstances ? The Presidents Order does not bar an enquiry into that ques tion. Apart from the fact that the reasoning on which the English case is based has no application here we have clear observations in judgments of this Court which show that the Order of the President does not form a bar to all applications for release from detention under the Act or the Rules. I will refer only to one of them. In Makhan Singh v. State of Punjab. . it was said If in challenging the validity of his detention order the detenu is pleading any right outside the rights specified in the Order his right to move any Court in that behalf is not suspended and by way of illustration of this proposition a case where a person was detained in violation of the mandatory provisions of the Defence of India Act was mentioned. That is the present case as the petitioner contends that the order of detention is not justified by the Act or Rules and hence is against its provisions. The petitioner is entitled to be heard and the present contention of the respondent State must be held to be ill founded and must fail. That is the present case as the petitioner contends that the order of detention is not justified by the Act or Rules and hence is against its provisions. The petitioner is entitled to be heard and the present contention of the respondent State must be held to be ill founded and must fail. Hidayatullah J. as he then was has observed in this connection in para graph 24 at page 740 questions about the right of persons detained under the Defence of India Rules to move the Court have come up frequently before this Court and many of the argu ments which are raised here have already been considered in a series of cases. For example it has been ruled in A. I. R. 1964 S. C. 173 that the right of any person detained under the Defence of India Rules to move any Court for the enforcement of his rights conferred by Arts. 21 and 22 of the Constitution remains suspended in view of the Presidents Order of November 3 1962 (Under Art. 359 (1 ). It has also been ruled that such a person cannot raise the question that the Defence of India Act or the Rules are not valid because if allowed to do so that would mean that the petitioners right to move the Court is intact. Other questions arising from detentions under the Defence of India Rules were further considered in Makhan Singh v. The State of Punjab A. I. R. 1964 S. C. 381. It is there pointed out that although the right of the detenu to move the Court is taken away that can only be in cases in which the proper detaining authority passes a valid order of detention and the order is made bona fide for the purpose which it professes. It is there pointed out that although the right of the detenu to move the Court is taken away that can only be in cases in which the proper detaining authority passes a valid order of detention and the order is made bona fide for the purpose which it professes. It would there fore appear from the latter case that there is an area of enquiry open before a Court will declare that the detenu has lost his right to move the Court That area at least embraces an enquiry into whether there is action by a competent authority and in accordance with Defence of India Act and the Rules thereunder Such an enquiry may not entitle the Court to go into the merits of the case once it is estab lished that proper action has been taken for the satisfaction is subjective but till that appears the Court is bound to enquire into the legality of the detention. ( 19 ) IN Sadanandan v. State of Kerala A. I. R. 1966 S. C. 1925 the Supreme Court has pointed out after all the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so if a prima facie case is made by the petitioner that his detention is either mala fide or is the result of the casual approach adopted by the appropriate authority the appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorized person to show that the allegations made by the petitioner about the casual character of the decision or its mala fides are not well-founded. and it was pointed out that the limited scope of the enquiry which is judicially permissible whether or not the detention of a detenu is justified on the merits is not open to judicial scrutiny that is a matter left by Rules subject to the satisfaction of the appropriate authorities empowered to pass orders under the relevant Rule. and it was pointed out that the limited scope of the enquiry which is judicially permissible whether or not the detention of a detenu is justified on the merits is not open to judicial scrutiny that is a matter left by Rules subject to the satisfaction of the appropriate authorities empowered to pass orders under the relevant Rule. ( 20 ) IN view of these decisions of the Supreme Court it is obvious that in spite of the Presidential Order a limited scope of enquiry is open to the Court and if without resorting to any of the fundamental rights which are specified in the Presidential Order the Court can consider the granting of relief to the petitioner because of any of the grounds which are recognised for example enforcement of mandatory provisions of any statute or challenge on the ground of mala fide or challenge on the ground that the Act itself is ultra vires the Constitution or on the ground that the grounds are irrelevant or that the grounds are such that on those grounds no reasonable person will ever pass the order of detention and thus the order is totally irrational all these grounds are still available to the detenu to challenge the order of detention in spite of the Presidential Order. . ( 21 ) MR. Vakharia appearing for the Union of India in some of the the matters where the same point has been taken urged before us that in Makhan Singhs case (supra) the Supreme Court has emphasized that the Court should examine the substance of the matter and should satisfy itself that in substance the petitioner does not seek to enforce any of the rights specified in the Presidential Order. He laid stress on the following words in paragraph 19 of the judgment delivered by Gajendragadkar J. as he then was occurring in paragraph 19 at page 895 of the report. . . . what has to be examined is not so much the form which the proceeding has taken or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen it would be neces sary for the Court to enquire into the question whether any of his specified funda mental rights have been contravened. In this connection he contended that the provisions of sec. In this connection he contended that the provisions of sec. 8 of the M. I. S. A. are nothing else but a re-production of Art. 22 (5) of the Cons titution. Art. 22 (5) is in these terms :when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Sec. 8 (1) of the M. I. S. A. is in these terms :when a person is detained in pursuance of a detention order the authority making the order shall as soon as may be but ordinarily not later than five days _and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. It is true that sec. 8 (1) of the M. I. S. A. substantially reproduces the language of Art. 22 (5) of the Constitution. But for the Presidential Order in order to meet the challenge of ultra vires it was obligatory on the Parlia ment to provide in the same terms as Art. 22 (5) if not for greater rights because if what has been mentioned in Art. 22 (5) is not prescribed In the Act by virtue of Art. 22 (5) it would be read into the Act. If for instance originally either the Preventive Detention Act or the M. I. S. A. had not provided as has been done in sec. 8 (1) of the M. I. S. A. then by virtue of the process of reading down the provisions of Art. 22 (5) would be read and the fundamental rights guaranteed by the Constitution would be enforced even if the Act had been silent. However we have now got a situation where two rights are conferred upon a citizen: one is a right under sec. 8 (1) of the M. I. S. A. and She other is a right conferred by Art. 22 (5 ). It is true that sec. However we have now got a situation where two rights are conferred upon a citizen: one is a right under sec. 8 (1) of the M. I. S. A. and She other is a right conferred by Art. 22 (5 ). It is true that sec. 8 (1) of the M. I. S. A. reproduces or as Mr. Vakharia urged reiterates what has been stated in Art. 22 (5) of the Constitution. But two distinct rights one under the Constitution and the other under the M. I. S. A. are conferred upon the citizen. In view of the mandatory provisions of Art. 22 (5) even if there had been no section in the M. I. S. A. like see. 8 (1) the obligation of the detained person with the grounds for detention and affording him the earliest opportunity of making a representation against the order were provided for by Art. 22 (5) and those obligations would have been enforced if there had been no Presidential order. However what we have to consider is what is the effect of 0sec. 8 (1) of the M. I. S. A. ( 22 ) THE detenu has been detained under the provisions of the order passed under sec. 3 (1) (c) of the M. I. S. A. and the grounds of detention have to be furnished under sec. 8 (1 ). Thus by virtue of rights flowing from two distinct sources one under sec. 8 (1) and the other under Art. 22 (5) the detained person has a right to be furnished with the grounds of detention as soon as may be after the order of detention has been executed against him and he has been detained and further he is also entitled to be afforded the earliest opportunity of making a representation against the order to the appropriate Government. When a citizen seeks to enforce his right to get the proper grounds for detention and says either on the ground of vagueness or on the ground that the order of detention passed against him under sec. 3 (1) (c) is not valid he does not invoke any of the fundamental rights which are specified in the Presidential Order. When a citizen seeks to enforce his right to get the proper grounds for detention and says either on the ground of vagueness or on the ground that the order of detention passed against him under sec. 3 (1) (c) is not valid he does not invoke any of the fundamental rights which are specified in the Presidential Order. Then in view of the observations in Makhan Singhs case (supra) the Court must hold that the relief can be granted to him without determining the questions of the alleged infringement of the specified fundamental rights. Relief cannot be granted to a citizen if the proceedings would fall under any of the fundamental rights specified in the order under Art. 359 But without referring to those specified rights at all in pursuance of the rights conferred upon the citizen under the provisions of the M. I. S. A. itself which are held to be mandatory relief can be granted and the case would be within the exception pointed out in Makhan Singhs case (supra) in such a case the Court cannot be said to be enforcing any of the specified rights mentioned in the Presidential Order. We have to consider in this connection the substance and not the form. The sub ject matter of the attack is the order passed under sec. 3 (1) (c ). The substance of the attack is either on the ground of vagueness or on the ground that there is no proximity of time between the incidents alleged in the grounds of detention and the date of the detention order or on the ground of non-application of mind or it is alleged that the order which passed is illegal and invalid. So far as the ground of vagueness is concerned it is alleged that if the right conferred by sec. 8 (1) is to be availed of the ground must not be vague and to that extent it must not deprive the detenu of the opportunity of making an effective representa tion as contemplated by sec. 8 (1 ). It is this right under sec. 8 (1) which is independently conferred by the M. I. S. A. that is sought to be enforced in the present case. There is no question in the present case of the petition seeking to enforce any of the specified rights mentioned in the Presidential Order. 8 (1 ). It is this right under sec. 8 (1) which is independently conferred by the M. I. S. A. that is sought to be enforced in the present case. There is no question in the present case of the petition seeking to enforce any of the specified rights mentioned in the Presidential Order. The effort is not to enforce Art. 72 (5) of the Constitution or the fundamental right conferred by Art. 22 (5) of the Constitution. What we have to consider is whether the mandatory provisions of sec. 8 (1) of M. I. S. A. have been followed or not. The provisions of sec. 8 (1) may in the ultimate analysis be traced historically to Art. 22 (5) of the Consti tution but the Parliament has thought it fit to enact sec. 8 (1) and certain rights under it. Because the Presidential order specifies Art. 22 (5) as one of the rights the enforcement of which has been suspended at the hands of the Court by virtue of the Presidential Order under Art. 359 (1) the mandatory provisions of sec. 8 (1) or the right flowing from those mandatory provisions cannot be said to be suspended. ( 23 ) THE Presidential Order also mentions that Art. 21 is one of the specified Articles and for the enforcement of those rights it is not open to the citizen to approach the Court and the proceedings which are pending at the date of the Presidential Order for the enforcement of such right would also be suspended. Art. 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Now sec. 8 (1) of the M. I. S. A. does not deal with any procedure. It lays down conditions for the contained detention of a detenu against whom an order of detention has been passed. If the mandatory provisions of sec. 8 (1) of the M. I. S. A. are not complied with namely that the grounds of detention are not furnished as contemplated by sec. 8 the continued detention of the person concerned would be illegal and would be in violation of sec. 8 (1 ). If the mandatory provisions of sec. 8 (1) of the M. I. S. A. are not complied with namely that the grounds of detention are not furnished as contemplated by sec. 8 the continued detention of the person concerned would be illegal and would be in violation of sec. 8 (1 ). Similarly if the 8rounds of deten tion are vague and do not afford an adequate opportunity to the detenu to make an effective representation against the order of detention again it would mean that the condition on which detention can be legally continued is not compiled with. It is not a condition precedent to the passing of the order of detention but it is a mandatory provision making it incumbent upon the authorities concerned to supply the detenu with the grounds of detention and to furnish him with the earliest opportunity of making a representation against the order to the appropriate Govern ment and if these conditions are not satisfied then the further detention of that person would be illegal. We may point out that under sec. 3 (1) ordinarily the grounds of detention are to be furnished within five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days. This is nothing else but a legislative interpretation of what is meant by the words as soon as may be occurring in sec. 8 and what we are stating in the course of this judgment regarding the scope of the right of the detenu under sec. 8 (1) has been expressed In the context of the words as soon as may be and not with the legislative interpretation of those words in mind. What is to be considered is whether after the initial order of detention was passed the continued detention in violation of the provisions sec. 8 (1) is legal or not. For that purpose the citizen or the detenu does not invoke either Art. 21 namely breach of any procedure established by law nor does he invoke any of the fundamental rights under Art. 22 (5) and therefore the contention that because of the Presidential Order the proceedings may be suspended cannot be accepted. 8 (1) is legal or not. For that purpose the citizen or the detenu does not invoke either Art. 21 namely breach of any procedure established by law nor does he invoke any of the fundamental rights under Art. 22 (5) and therefore the contention that because of the Presidential Order the proceedings may be suspended cannot be accepted. Of course if in a particular case before us it is found that without resorting to any of the fundamental rights specified in the Presidential Order relief cannot be granted to the citizen then it must be held that that particular case would be barred or would have to be suspended by reason of the Presidential Order under Art. 359 (1 ). Under these circumstances the second preliminary contention urged on behalf of the respondents fails and is rejected. ( 24 ) LASTLY by way of preliminary objection it was contended that while the Presidential Order is in force the High Court cannot issue any writ of habeas corpus or any other writ direction or order under Art. 226 releasing the detenu unless the case falls under any of the exceptions. Now that is precisely the point which we have been dealing with in connection with ground No. 2 namely that it is only if the case falls within any one of the five exceptions which have now been recognised by the Supreme Court as cases not covered by the Presidential Order under Art. 359 (1) that the High Court can operate. As a part of this argument it was also contended that the petitioners are not entitled to maintain a petition for habeas corpus in view of the fact that the detenu has been detained under a valid law and the petitioner is not entitled to maintain a petition for any other writ order or direction like mandamus etc. Now this third preliminary ground proceeded upon the footing that what is sought to be done is to challenge any of the specified rights or in the alternative the rights of the High Court to issue directions in the nature of habeas corpus etc. is suspended. Now this third preliminary ground proceeded upon the footing that what is sought to be done is to challenge any of the specified rights or in the alternative the rights of the High Court to issue directions in the nature of habeas corpus etc. is suspended. ( 25 ) IT must be pointed out that what is sought to be done in the instant case is that the scope of the inquiry is only to the limited extent which was pointed out by Hidayatullah J. in Ram Manohar Lohias case (supra ). At page 750 Hidayatullah J. has observed that the area of enquiry before the Court embraces an enquiry into whether there is action by a competent authority and in accordance with Defence of India Act and the Rules thereunder. Such an enquiry may not entitle the Court to go into the merits of the case once it is established that proper action has been taken for the satisfaction is subjective but till that appears the Court is bound to enquire into the legality of the detention. What is sought to be done is to challenge the legality of the detention either on the ground that the order of detention was bad or that the continued detention for some reason or other is bad. ( 26 ) THE Court is bound to enforce the rule of law and if the law in the shape of sec. 8 (1) of the M. I. S. A. says that a particular thing should be done it must be done unless the Presidential Order intervenes and prevents the Court from granting the appropriate relief. It has been pointed out in Halsburys Laws of England Fourth Edition Volume 1 page 5 paragraph 2- the exercise of Governmental authority directly affecting individual interests must rest on legitimate foundations. For example powers exercised by the Crown its ministers and central Government departments must be derived directly or indirectly from statute common law or the royal prerogative and the ambit Or those powers is determinable by the courts save insofar as their jurisdiction has been excluded by unambiguous statutory language. For example powers exercised by the Crown its ministers and central Government departments must be derived directly or indirectly from statute common law or the royal prerogative and the ambit Or those powers is determinable by the courts save insofar as their jurisdiction has been excluded by unambiguous statutory language. The Executive does not enjoy a general or inherent rule-making or regulatory power except in relation to the internal functioning of the central administrative hierarchy though ministerial announcements and departmental circulars intended to influence or direct the conduct of public affairs in matters affecting individual interests are not uncommon. Nor in general can state necessity be relied on to support the existence of a power or duty or to justify deviations from lawful authority. Moreover in the absence of express statutory authority public duties cannot normally be waived or dispensed with by administrative action for the benefit of members of the public. Thus it is to enforce this principle of legality or what is to be referred to as the rule of law the we have considered the provisions of the M. I. S. A and the question that we have to ask ourselves is what are the clear requirements of M. I. S. A. and secondly whether those requirements are satisfied in any particular case or not. Under these circumstances each of the three preliminary objections urged on behalf of one or the other respondents fails and is rejected. . . . . . . . . . . . . . . . . . . . [ The rest of the judgment is not material for the report. ] petition dismissed : Leave to appeal granted. .