JUDGMENT : ( 1. ) THIS order shall also govern Miscellaneous Petition Nos. 626, 669, 671, 672, 693, 694, 700, 701, 702, 703, 704, 735, 736 and 772, all of 1975. These petitions have been heard on a preliminary point relating to jurisdiction. It would be convenient to deal with it by this common order. ( 2. ) THESE fifteen petitions are filed by the petitioners under Article 226 of the Constitution for the issue of a writ of Habeas Corpus, by which the peti tioners challenge the validity of their detention by the orders of the Additional district Magistrate, Jabalpur, and of the District Magistrate, Raigarh, Khandwa, rajnandgaon and Panna, under section 3 (1) (a) (ii) of the Maintenance of internal Security Act, 1971, on their being "satisfied" that the detention of the petitioners was necessary with a view "to preventing the petitioners from meeting in any manner prejudicial to the maintenance of public order". ( 3. ) IN response to the rules which were issued, the learned Government- Advocate appeared and raised a preliminary objection as to jurisdiction, namely, that in view of the Proclamation of Emergency by the President of India dated 25th June, 1975 under Article 352 (1) of the Constitution, the Presidential Order dated 27th June, 1975 issued by him under Article 359 (1) of the Constitution and the provisions of the Maintenance of Internal Security Act, 1971 as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) and the Maintenance of Internal Security (Second Amendment) Ordinance, 1975 (No. 7 of 1975), this Court has no jurisdiction to entertain these petitions. ( 4. ) THE Proclamation of Emergency on 25th June, 1975 reads : "ministry of Home Affairs. NOTIFICATION new Delhi, the 26th June, 1975. G. S. R. 353 (E ).-The following Proclamation of Emergency by the President of india, dated the 25th June, 1975, is published for general information:-PROCLAMATION OF EMERGENCY in exercise of the powers conferred by clause (1) of Article 352 of the Constitution, i. Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbance. F. A. Ahmed. New Delhi: President. " The 25th June, 1975. ( 5. ) THE Presidential Order issued on 27th June, 1975 is as follows :- "g. S. R. 361 (E ). F. A. Ahmed. New Delhi: President. " The 25th June, 1975. ( 5. ) THE Presidential Order issued on 27th June, 1975 is as follows :- "g. S. R. 361 (E ). In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by Article 14, article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. This Order shall extend to the whole of the territory of India except the State of Jammu and Kashmir. This Order shall be in addition to and not in derogation of any Order made before the date of this Order under clause (1) of Article 359 of the Constitution. " ( 6. ) ON 29th June, 1975, the President promulgated the Maintenance of internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975 ). The Ordinance provides, inter alia, by section 2 that during the period of its operation, the Maintenance of Internal Security Act, 1971 shall have effect subject to the amendments specified in sections 3, 4 and 5. By section 5, a new section 16a was inserted, making special provisions for dealing with emergency. On 15th july, 1975, the President promulgated another Ordinance, namely, the Maintenance of Internal Security (Second Amendment) Ordinance, 1975 (No. 7 of 1975 ). Amongst other things, the said Ordinance by section 5, substituted new sub-sections for sub-sections (6) and (7) of section 16a. ( 7. ) THE two Ordinances Nos. 4 and 7 of 1975 have now been replaced by the Maintenance of Internal Security (Amendment) Act, 1975. The Act provides, inter alia, by sub-section (2) of section 1, that section 7 would be deemed to have come into force on 25th June, 1975 and the remaining provisions on 29th June, 1975. By section 6, a new section 16a has been inserted which reads:- "16a. The Act provides, inter alia, by sub-section (2) of section 1, that section 7 would be deemed to have come into force on 25th June, 1975 and the remaining provisions on 29th June, 1975. By section 6, a new section 16a has been inserted which reads:- "16a. (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution on the 3rd day of December, 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest. (2) The case of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner released from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have been issued (hereinafter in this section, referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. (3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the State government or, as the case may be, the Officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or the State government or, as the case may be, the Officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned; provided that where such declaration is made by an officer, it shall be reviewed by the state Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days. (4) The question whether detention of any person in respect of whom a declaration has been made under sub-section (2) or sub-section (3) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration. (5) In making any review, consideration or reconsideration under sub-sections (2), (3)or (4), the appropriate Government or Officer may, if such Government or officer considers it to be against public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned. (6) In the case of every person detained under a detention order to which the provisions of sub-section (2) apply, being a person the review of whose case is pending under that sub-section or in respect of whom a declaration has been made under that sub-section,- (i) sections 8 to 12 shall not apply; and (ii) section 13 shall apply subject to the modification that the words and figures "which has been confirmed under section 12" shall be omitted. (7) In the case of every person detained under a detention order to which the provisions of sub-section (3) apply, being a person in respect of whom a declaration has been made under that sub-section,- (i) Section 3 shall apply subject to the modification that for sub-sections (3) and (4)thereof, the following sub-section shall be substituted, namely:-" (3) When any order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order". (ii) Sections 8 to 12 shall not apply; and (iii) Section 13 shall apply subject to the modifications that the words and figures "which has been confirmed under section 12" shall be omitted". " ( 8. ) BY section 7, a new section 18 has been inserted to the effect:- "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any. ". ( 9. ) THE question of jurisdiction was argued on demurrer when the petitions came up for hearing. ) BY section 7, a new section 18 has been inserted to the effect:- "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any. ". ( 9. ) THE question of jurisdiction was argued on demurrer when the petitions came up for hearing. The learned Government Advocate appearing on behalf of the respondents questioned the jurisdiction of the High Court on two main grounds, submitting first, that in view of the Proclamation of Emergency by the President of India dated 25th June, 1975 under Article 352 (1) of the constitution and the Presidential Order dated 27th June, 1975 under Article 359 (1) of the Constitution founded upon it, and that fact that the Act has been substantially amended to bring it into accord with the needs of the situation, the Court had no jurisdiction to enter upon an enquiry whether or not the detention of the petitioners under section 3 (1) (a) (ii) of the Maintenance of Internal Security Act, 1971, was lawful, i. e. , the right of approach to the court for redress in case of preventive detention under section 3, sub-section (1)during the period specified in the Presidential Order, i. e. for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force is excluded in its entirety; and secondly, that even if there was any such right, the jurisdiction of the Court to issue a writ of habeas corpus is completely barred, by reason of the new section 18 of the Act. ( 10. ) THE first of the submissions went to the length of saying that in view of the changes brought about the matter is no longer governed by the principles enunciated by the Supreme Court in Makhan Singh v. The State of Punjab ( AIR 1964 SC 381 . ). The learned Government Advocate accordingly, urges that the decisions of this Court in Subhashchandra v. District Magistrate, Jabalpur ( 1975 MPLJ 132 .) will not apply. ( 11. ). The learned Government Advocate accordingly, urges that the decisions of this Court in Subhashchandra v. District Magistrate, Jabalpur ( 1975 MPLJ 132 .) will not apply. ( 11. ) IT was said that the President had before him the views expressed by the different High Courts based upon the decision of their Lordships in Makhan singhs case (supra), and it was felt that there was need for dealing effectively, with the emergency which was not only grave but was such as to threaten the security of economic life of the country by internal disturbance or by its imminent danger to place the subjective satisfaction of the detaining authority making an order of detention under section 3, sub-section (1) of the Maintenance of Internal Security Act, 1971, beyond the scope of judicial scrutiny. ( 12. ) MAKING this assumption, the learned Government Advocate has no doubt that the effect of the Presidential Order dated 27th June, 1975, was to suspend the citizens right to move any Court for enforcing their fundamental rights under Articles 21 and 22 of the Constitution and this, according to him, effectively prevents the detenus from contending that their detention was illegal and void. According to the learned Government Advocate 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. It is said that, in case of preventive detention whenever the detenu challenges the validity of the order of detention on whatever grounds, he is, in effect, seeking to enforce nothing but his fundamental right of personal liberty guaranteed under Article 21. ( 13. It is said that, in case of preventive detention whenever the detenu challenges the validity of the order of detention on whatever grounds, he is, in effect, seeking to enforce nothing but his fundamental right of personal liberty guaranteed under Article 21. ( 13. ) RELIANCE is placed on the following observations in the majority view of their Lordships in Makhan Singhs case (supra), at p. 402:- "this argument seems to assume that if the Parliament had expected the executive to detain citizens under the Preventive Detention Act of 1950 without giving them the benefit of the Constitutional safeguards prescribed by Article 22, their cases could have been covered if a Presidential Order had been issued under Article 359 (1) in respect of such detentions. The question is : is this assumption well founded ? Assuming that the Presidential order had suspended the citizens right to move any Court for enforcing their fundamental rights under Articles 14, 21 and 22 and had made the said Order applicable to persons detained under the Preventive Detention Act of 1950, could that Order have effectively prevented the detenus from contending that their detention was illegal and void. In such a case, if the detenu was detained under the Preventive Detention Act of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with, would his challenge be covered by Article 359 (1)and the Presidential Order issued under it ? In other words, can it be said that in making the said challenge he was enforcing his fundamental rights specified in the Presidential order ? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with, his challenge may be outside Article 359 (1) and the Presidential Order. If, on the other hand, it is held that, in substance, the challenge is to enforce his aforesaid fundamental rights, though he makes the challenge by reference to the relevant statutory provisions of the Act themselves, that would have brought his challenge within the prohibition of the Presidential Order. If, on the other hand, it is held that, in substance, the challenge is to enforce his aforesaid fundamental rights, though he makes the challenge by reference to the relevant statutory provisions of the Act themselves, that would have brought his challenge within the prohibition of the Presidential Order. Normally, as we have already held, a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with, would fall outside Article 359 (1) and the Presidential Order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the mandatory provisions in question essentially represent the fundamental rights guaranteed by Article 22 and it is open to argument that the challenge in question substantially seeks to enforce the said fundamental rights. In the context of the alternative argument with which we are dealing at this stage, it is unnecessary for us to decide whether the challenge in question would have attracted the provisions of Article 359 (1) and the Order or not. " It is accordingly argued that preventive detention under the Maintenance of internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Act, 1975, stands on a different footing. ( 14. ) THE first submission can easily be met, in two ways: (i) the terms of article 359 (1) of the Constitution are sufficiently explicit to make it difficult as matter of implication to construe the Constitution as empowering the Presidents to suspend the powers of the High Court to issue a writ of habeas corpus under article 225 of the Constitution, in case of illegal detention; and (ii) the matter is squarely covered by the decision of their Lordships in Makhan Singhs case (supra), and, therefore, the decision of this Court in Subhashchandra Jain v. District Magistrate, Jabalpur (supra), applies in so far as the petitioners seek to challenge their detention on grounds other than those specified in the Presidential Order. It will be convenient to consider these points in the order stated. ( 15. It will be convenient to consider these points in the order stated. ( 15. ) BY Article 359 (1) of the Constitution, it is enacted that: "359 (1): 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. " The provisions in plain terms empower the President, where a proclamation of Emergency made under Article 352 (1) is in operation, to suspend by a presidential Order issued thereunder the citizens right to move any Court for the enforcement of such of the rights in part III of the Constitution as may be mentioned in the order for the period during which the proclamation of emergency is in force or for such shorter period as may be specified. It does not provide for suspension of his right to move the Court for the enforcement of other rights under the constitution e. g. , the, right to move the High Court under Article 226 of the Constitution for a writ of habeas corpus. ( 16. ) THE submissions of the learned Government Advocate were substantially the same as in Subhaschandras case (supra), but he contends that in the changed circumstances this Court is deprived of its power to entertain a petition under Article 226 of the Constitution for a writ of habeas corpus, even in cases where the challenge by the detenu to the validity of his detention is outside the Presidential Order under Article 359 (1 ). The contention must, in our view, fail, although the present situation is undoubtedly different. ( 17. ) THE only difference is that while the earlier two Proclamations of emergency under Article 352 (1) dated 26th October 1962 and 3rd December 1971, related to a declaration of a state of grave emergency whereby the security of the country was threatened due to "occurrence of war and external aggression, "the present Proclamation of Emergency dated 25th June 1975 relates to a declaration of a state of grave emergency whereby its security is threatened by "internal disturbance". ( 18. ) THE earlier two Presidential Orders issued under Article 359 (1) i. e. , one dated 3rd November 1962, with which their lordships of the Supreme Court were concerned in Makhan Singhs case (supra), and the other dated 16th november, 1974, which came up for consideration before this Court in Subhaschandras case (supra), were more or less similar to the present Presidential order dated 27th June 1975, except that it also refers to aliens. ( 19. ) THE drastic changes brought about in the Maintenance of Internal security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Act, 1975, however, create a vital difference. During the period specified in sub-section (1) of section 16 of the Act, the Constitutional safeguards guaranteed to the citizen by clauses (4) to (7) of Article 22 of the Constitution and the procedural requirements of section 8 to 12 of the Act which essentially represent the fundamental rights guaranteed by Article 22, have been removed in certain circumstances. It is debatable whether a law made by the Parliament providing for "preventive detention", e. g. detention without trial, under entry 9 of List I of the Seventh Schedule, without the constitutional safeguards under Article 22 (4) to (7) is within its legislative competence, but the validity of the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Act, 1975 cannot be challenged in view of the constitution (Thirty ninth Amendment) Act, 1975. ( 20. ) THE result of the changes brought about, is that when making an order of detention under section 3, sub-section (1), the Central Government or the State Government, or as the case may be, the officer concerned makes a declaration in terms of sub-sections (2) or (3) of section 16a of the Act, there is no longer any necessity to furnish the detenu with the grounds of detention, by reasons of sub-sections (6) and (7) thereof. Nor does in such a case the provisions of sections 8 to 12 of the Act are attracted. Once the two conditions are fulfilled, the new section 18 applies in all its rigour, and the person detained has no right to personal liberty by virtue of natural law or common law, if any. ( 21. Nor does in such a case the provisions of sections 8 to 12 of the Act are attracted. Once the two conditions are fulfilled, the new section 18 applies in all its rigour, and the person detained has no right to personal liberty by virtue of natural law or common law, if any. ( 21. ) WE find no logic or reason to differ from the view taken by this Court in Subhashchandra Jain v. District Magistrate, Jabalpur, (supra) explaining the scope and effect of their Lordships decision in Makhan Singhs case (supra ). This is what was observed :- "their Lordships assumed that despite the issue of the Presidential Order under Article 359 (1), the fundamental lights guaranteed under Articles 21 and 22 were not suspended, but held that what was suspended was the enforcement of the said rights during the prescribed period. In dealing with the question, their Lordships observed: in other words, Article 359 (1) and the Presidential Older issued under it may constitute a short of moratorium or a blanket ban against the institution or continuance of any legal action subject Jo two important conditions. " The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimants fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the order. Their Lordships then went on to consider what pleas were still open to the citizens to take in challenging the legality or propriety of their detention, and stated: (i) If in challenging the validity of his detention order, the detenu is pleading any tight outside the rights specified in the order, his right to move any Court in that behalf is not suspended, because it is outside Article 359 (i) and consequently outside the Presidential Order itself. (ii) Where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. (iii) If a detenu contends that the operative provisions of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid. " ( 22. (ii) Where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. (iii) If a detenu contends that the operative provisions of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid. " ( 22. ) THIS Court then indicated that in case of deprivation of personal liberty by preventive detention of citizens, it would still be open to the citizen, despite the Presidential Order, to take the following four grounds of challenge, namely:- (i) That, the order in ultra vires, e. g. , that, it appears, on the face of the order, that it has been issued by an authority not empowered to pass it, or in excess of the power delegated to him, or that the power has been exercised inconsistently with the conditions prescribed in that behalf, or, that the order is not in strict compliance with the Act; (ii) That, the order is mala fide, e. g. , by showing- (a) that the authority who issued the order did not apply his mind to the relevant considerations, e. g. , whether the order mentions all the grounds specified in the Act and in the affidavit of the authority only some of them are relied on, or mentions "law and order" instead of "public order" as the ground, (b) that the authority was actuated by improper motives; (iii) That the grounds mentioned in the order are irrelevant, or, that there is no proximate connection between the grounds and the object which the legislature had in view; (iv) That the Act or the Rules suffer from the vice of excessive delegation. " Of these, grounds Nos. (iii) and (iv) are no longer available, in view of the changed circumstances. ( 23. ) THE scope of enquiry in such a case is, therefore, now limited to two questions, namely:- (i) whether there is a valid order of detention made under section 3 (1)of the Act; and (ii) whether the detaining authority has made a declaration in terms of section 16a (2) or (3) of the Act, declaring that the detention of such person is necessary for effectively dealing with the emergency. To this extent, we think, the matter would still be governed by their Lordships decision in Makhan Singhs case, (supra ). ( 24. To this extent, we think, the matter would still be governed by their Lordships decision in Makhan Singhs case, (supra ). ( 24. ) THE learned Government Advocates second submission, being alternative to his first, must be now be examined. With the provisions of the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of internal Security (Amendment) Act, 1975 valid and section 16-A effectual, was section 18 meant to create a bar to the jurisdiction of the High Courts under article 226 of the Constitution to issue a writ of habeas corpus? That section 18 of the Act does not seek to amend the Constitution may be accepted and the question, therefore, turns only on the construction of the section. The section is only designed to effect a curtailment of the right of a person, to personal liberty when detained under the Act. That is the whole object and purpose of the legislation. The words used in section 18 of the Act could scarcely be more comprehensive. In our view, they reflect the fact that a grave emergency can assume many forms and may make demands upon the Government which could only be met if the widest powers were available. ( 25. ) HABEAS Corpous, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by the Courts cannot, in our judgment, be constitutionally abridged by the executive or by the Parliament except in the manner provided by Article 368 of the Constitution. ( 26. ) THE history of this matter has been set out in many books of reference, (See, Basu on Constitution, 4th Edn. , Vol. 3, pp. 405-407 and pp. 437-438), and it is no part of our intent to burden this judgment with any historical disquisition. By Acts of the Legislature lawfully passed in 1875 and subsequent years, the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by section 491 of the Code of Criminal Procedure, 1898. Thereafter, the power to issue a writ of habeas corpus was not based on the common law. ( 27. By Acts of the Legislature lawfully passed in 1875 and subsequent years, the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by section 491 of the Code of Criminal Procedure, 1898. Thereafter, the power to issue a writ of habeas corpus was not based on the common law. ( 27. ) IN C. P. Mathan and others v. District Magistrate, Trivandrum and another (AIR 1939 PC 213.), their Lordships of the Privy Council quoted with approval the views of Rankin C. J. , in Girindra Nath Banerjee and another v. Birendra Nath Pal (ILR 54 Cal. 727), and held that, in cases covered by section 491, the power to issue a common law writ of habeas corpus in British India had been taken away by legislation, and the powers conferred by section 491 of the Code of Criminal Procedure, 1898 substituted therefor. ( 28. ) LORD Thankerton, speaking for their Lordships, observed :-"it will be convenient to dispose next of the fourth contention of the appellants. On this point their Lordships agree with the conclusions of the Full Bench in the present case which are stated in the judgment delivered by the learned Chief Justice as follows: the High Courts Act of 1861, authorised the Legislature if it thought fit to take away the powers which this Court obtained as the successor of the Supreme Court, and Acts of the Legislature lawfully passed in 1875 and subsequent years leave no doubt in my mind that the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by section 491, Criminal Procedure Code of 1898. Indeed counsel for the appellants stated that he found difficulty in pressing this contention, and the reasoning of the learned Chief Justice, on which he based the above conclusion, is so clear and convincing, including his narration of the Legislative Acts referred to in his conclusion, that their Lordships are content to adopt it, as also to state that, like the learned Chief Justice, they are in the entire agreement with the judgment of Rankin C. J. in girindra Nath Banerjee v. Birendra Nath Pal. " The view was reiterated by their Lordships of the Privy Council in Emperor v. Sibnath Banerji and others (AIR 1945 PC 156.) and the history traced by Rankin C. J. , quoted with approval. " The view was reiterated by their Lordships of the Privy Council in Emperor v. Sibnath Banerji and others (AIR 1945 PC 156.) and the history traced by Rankin C. J. , quoted with approval. In this connection, we may also refer to the celebrated judgment of vivian Bose and Sen J J. , in Vimlabai Deshpande v. Grown (ILR 1945 Nag, 6. ). ( 29. ) IN India, prior to the Constitution, the right to habeas corpus, so far as it rested upon the statutory provision in section 491 of the Code of Criminal procedure, 1898 could be barred or controlled by legislation. Thus, sub-section (3) of section 491 of the Code, itself specified certain enactments with respect to which, no relief under section 491 was available, e. g. , Reg. III 1818; state Prisoners Acts. The remedy was also barred by separate enactments, e. g. , the Bengal Criminal Law (Amendment) Act, 1925. ( 30. ) TO sum up : Under the Constitution, the Constitutional remedies given by Article 32 or 226 cannot be barred by any legislation, short of amendment of the Constitution itself. The new Criminal Procedure Code, 1973, has deleted the old section 491, presumably because it was felt that there was no longer any justification for keeping it on the status book. That being so, the power to issue a writ of habeas corpus is not a statutory right. Nor is it based upon the common law or any natural law. ( 31. ) THE decisions in Ramchandra v. The State of M. P. and Ors (Misc. Petition No. 106 of 1975, decided on 30-7-1975.) and Dayaram v. The State of M. P. and Ors (Misc. Petition No. 148 of 1975, decided on 21-7-1975.) of the Indore Bench, relied upon by the respondents, are of no avail. The decision in Ramchandra v. The State of M. P. and Ors. (supra), was per incuriam, while that in Dayaram v. The State of M. P. and Ors. (supra), does not touch the point of jurisdiction. ( 32. ) THE preliminary objection, therefore, partly fails and is rejected. ( 33. ) THE respondents are, however, granted a certificate of fitness under article 132 of the Constitution, as the case involves a substantial question of law as to the interpretation of the Constitution. Preliminary objection rejected.