GUPTA, J.—These twenty five writ petitions, the particulars of which are given in the schedule annexed to this order, have been filed in this Court under Article 226 of the Constitution of Indis for writs of habeas corpus or for any other appropriate writ, order or direction for the release of the detenues, who have been detained under the provisions of Maintenance of Internal Security Act, 1971 (hereinafter referred to as MISA). Some of these petitions have been filed by the detenues themselves while some others have been filed by the near relatives of the respective detenues. The petitioners have challenged the detention and continuance of detention of the detenues on various grounds. 2. When these petitions were set down for hearing before us, at the outset, learned Additional Advocate General, appearing for the State of Rajasthan and Mr. S. K. Mal Lodha, appearing for the Union of India, raised preliminary objections to the maintainability of these writ petitions and to the jurisdiction of this Court to hear and decide them. As the preliminary objections raised on behalf of the respondents in respect of all these writ petitions are identical and as common arguments have been advanced before us by the learned counsel for the parties, it would be convenient to deal with them by a common order. 3 The main contentions raised by Dr. Tiwari, learned Additional Advocate General, on behalf of the State of Rajasthan were two fold. In the first instance it was urged by him that all these writ petitions were not maintainable in view of the Proclamation of Emergency, issued by the President of India on June 25,1975 under Article 352(1) of the Constitution of India and the Presidential Order based upon it promulgated by the President on June 27, 1975 under Article 359 (I) of the Constitution of India. It was argued by the learned counsel that these petitions in substance seek to enforce the fundamental right of personal liberty guaranteed under Articles 21 and 22 of the Constitution of India but in view of the aforesaid Presidential Order, the right to move any Court for enforcement of the rights guaranteed under Articles 21 and 22 of the Constitution has been suspended and the petitioners, therefore, cannot challenge the detention of the datenues on any ground whatsoever and as such the writ petitions are not maintainable. In the second place it has been argued by the learned counsel that this Court has no jurisdiction to enter upon an enquiry into the question as to whether the detention of the detenues was lawful, in view of the recent amendments made in the Constitution of India by the 38th and 39th Amendment Acts and the amendments made in the MISA, particularly the introduction of sections therein. It is urged that the grounds on which the detention of the detenues have been challenged in these petitions cannot be considered be this Court. In substance it has been argued that the jurisdiction of this Court to issue writs of habeas corpus in respect of persons detained under section 3(1)(a)(11) of MISA no longer exists. It was lastly argued by Mr. Tiwari that in any view of the matter, the area of judicial review by this Court in respect of matters of detention under MISA is extremely narrow, if the same exists at all. 4. Mr. S.K. Mal Lodha, appearing for the Union of India supported the aforesaid contentions raised by the learned Additional Advocate General and also urged that the amendments introduced in Articles 123, 352 and 359 of the Constitution could not be challenged by the petitioners and the Ordinances, Proclamations and Orders issued thereunder could not also be challenged in view of the provisions of 38th and 39th Constitution Amendment Acts and that the various amendments made in MISA could not be challenged as the said Act has been included in the 9th Schedule annexed to the Constitution, by 39tn Amendment Act. It was argued that the declaration and continuance of emergency are not justiciable and account of the provisions of clause (5) introduced in Article 352 of the Constitution by the 38th Amendment Act. It was further argued by the Lodha that the question of legality of detention should be considered with reference to the law existing on the date of hearing. It was, therefore, urged on behalf of the respondents that the writ petitions were not maintainable and this Court has not jurisdiction to hear and decide them on merits. 5. On the other hand, it was contended by Mr. G.M. Lodha and Mr. It was, therefore, urged on behalf of the respondents that the writ petitions were not maintainable and this Court has not jurisdiction to hear and decide them on merits. 5. On the other hand, it was contended by Mr. G.M. Lodha and Mr. M.B.L. Bhargava, appearing for some of the petitioners that inspite of all the amendments made in the Constitution and the MISA, the power of judicial review by this Court in the matter of detention as also in respect of the proclamation and continuance of emergency still remains and this Court is entitled to consider the question as to whether the executive actions could be justified with reference to some valid law and that the power of this Court atleast extends to the matters specified in the order of this Court in Shamsher Singh vs. State of Rajasthan (1). It was also argued that the amendments made in the Constitution of India by the 38th and 39th Amendment Acts were void and invalid as they seek to alter the basic structure or basic features of the Constitution and interfere with the supremacy of the Rule of Law. It was also argued that no real emergency existed and as such the proclamation of Emergency issued by the President of India on June 25, 1975 and the continuance of Emergency proclaimed in the year 1971 were invalid and mala fide. Learned counsel also challenged the validity of amendments made in MISA, particularly sections 16A and 18 thereof on the ground that they rendered the power of judicial review of this Court under Article 226 of the Constitution nugatory or at least illusory. 6. In respect of the first contention, it was urged by Dr. Tewari that by the Presidential Order issued under Article 359 (1) of the Constitution, the fundamental rights conferred by Articles 14, 21, and 22 were suspended for all purposes and that the detenues had no fundamental right which could be enforced by means of these writ petitions in the Court. Learned counsel argued that the right to personal liberty was enshrined in Articles 21 and 22 of the Constitution. Learned counsel argued that the right to personal liberty was enshrined in Articles 21 and 22 of the Constitution. It was urged that in the first place there was no natural or common law right of personal liberty and in the second place, if there was any such right it had no existence as a natural or common law right after the right to personal liberty was incorporated in Article 21 of the Constitution It was also argued that after the enforcement of the right of personal liberty, guaranteed under Article 21, has been suspended by the Presidential Order, the executive action resulting in the detention of persons, even if it is not supported by any law, still could not be challenged in this Court, as in substance the challenge would be an attempt to enforce the right to personal liberty which has been taken away. It was argued by the learned Additional Advocate General that the Presidential Order imposed a blanket ban in respect of all challenges to the validity of the orders of detention, on what ever grounds, as in effect it would amount to enforcement of the fundamental right of personal liberty and thus the detention of the detenues was beyond the judicial scrutiny on any ground whatsoever. Learned Additional Advocate General placed reliance upon some passages from the judgment of their Lordships of the Supreme Court in Kesavananda Bharati Sripadagalvaru vs. State of Kerala (2) in support of the proposition that apart from the Constitution and the laws of the State there was no enforceable natural or common law rights. It was also urged that the decision of this Court in Shamsher Singhs case (1) holding that the right of judicial review was available to a limited extent in the matter of detention under MISA could no longer be made applicable, in view of the various changes introduced in the MISA and the Constitution after the case of Shamsher Singh was decided by this Court on July 15, 1975, particularly as section 16A of the MISA has been amended extensively and section 18 has been added to MISA and further MISA has been included in the 9th Schedule by the Constitution 39th Amendment Act and various provisions of the Constitution relating to such matters have also been amended by the 38th Amendment Act. However, learned counsel appearing for the petitioners contested these submissions. 7. However, learned counsel appearing for the petitioners contested these submissions. 7. In order to appreciate the rival contentions advanced by the learned counsel for the parties, it would be proper to refer to the relevant provisions of the Constitution of India. Articles 21 and 22 of the Constitution are as under :— "21. No person shall be deprived of his life or personal liberty except according to procedure established by law. 22, (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be desponded by, a legal practitioner of his choice. (2) Every person who is arrested and detained is custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) shall apply, (a) to any person who for the time being is an enemy, alien or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless : (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7). (5) 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. (6) Nothing in clause (5) shall require the authority making any such as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe:— (a) the circumstance under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4). (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and; (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)," Article 123 of the Constitution years as under:— "123 Power of President to promulgate Ordinances during recess of Parliament.—¦ (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance— (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President." (3) xx xx xx (4) Notwithstanding anything in this Constitution the satisfaction of the President mentioned in clause (1) shall be final conclusive and shall not be questioned in any court on any ground." Clause (4) was introduced in Article 123 by the Constitution (38th Amendment) Act, 1975, which came into force on August 1, 1975. 8. 8. Article 352 of the Constitution which relates to Proclamation of Emergency runs as follows - "352(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Pro-claimation, make a declaration to that effect, (2) A proclamation issued under clause(1)- (a) may be revoked by a subsequent Proclamation: (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both the Houses of Parliament. Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of Mates, but no resolution with respect to such Proclamation has been passed by the House of the People before the cess to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. (4) The power conferred on the President by this Article shall include the power to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or or internal disturbance whether or not there is a proclamation already issued by the President under clause (1) and such proclamation is in operation. 5. 5. Notwithstanding anything in this Constitution — (A) The satisfaction of the President mentioned in clause (1) and (3) shall be final and conclusive and shall not be questioned in any court on any ground (B) Subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question on any ground, regarding the validty of— (i) A declaration made by proclamation by the president to the effect stated in clause (1) or (ii) The continued operation of such proclamation". 9. It may be mentioned here that clause 4 and 5 in Art. 352 have been introduced by the Constitution (38th Amendment) Act which came into force on August 1, 1975 Under the provisions of clause(1) of Article 352, the President of India issued the following Proclamation of Emergency on June 25, 1975. Proclamation of Emergency "In exercise of the powers conferred by clause (1) of Art. 352 of the Constitution, 1, Fakhruddin Ali Ahmed, President of India, by this Proclaima-tion declare that a grave emergency exists whereby the security of India is threatened by internal disturbance." New Delhi, The 25th June, 1975 F.A. AHMED PRESIDENT." 10. Art. 359 of the Constitution runs as under— "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 rights enforcement 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. (1A) While an order made under clause (1) mentioning any of the rights conferred by part 3 is in operation, nothing in that part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." 11. Clause (1A) of Article 359 was also introduced by the 38th Amendment Act, which came into force on August 1, 1975, in exercise of the powers conferred upon him by clause (1) of Article 359 of the Constitution the President of India issued the following order on June 27, 1975 (as amended on June 29, 1975) — "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 Proclamation 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. 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. No. II/16013/1/75-S&P (D) II S.L. Khurana, Secy." 12. From a perusal of the aforesaid Presidential Order issued under Article 359(1) of the Constitution, there can be no doubt that the right of a person to move any court, including this Court, for the enforcement of fundamental rights conferred upon him by Articles 14, 21 and 22 of the Constitution has been suspended during the period the Proclamation of Emergency issued by the President under Article 352(1) of the Constitution remains in force. It is also to be noticed that the Presidential Order issued on June 27, 1975 is in general terms and is all comprehensive as it is not restric-tive to detentions made under any specified law. On account of the provisions of Article 358 of the Constitution, the fundamental right under Article 19 of the Constitution stood automatically suspended with effect from the date of declaration of Emergency. On account of the provisions of Article 358 of the Constitution, the fundamental right under Article 19 of the Constitution stood automatically suspended with effect from the date of declaration of Emergency. However, the question that arises now for determination is as to whether the right of a person to move this Court under Article 226 of the Constitution for a writ of habeas corpus is also taken away on account of the suspension of the right of the person to move this Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution. 13. It cannot be disputed that the power and jurisdiction of this Court to issue writs, orders and directions under Article 22 of the Constitution of India has not been suspended but what is urged before us on behalf of the respondents is that a writ in the nature of habeas corpus is in substance a petition to enforce the fundamental right of personal liberty guaranteed under Article 21 of the Constitution and the petitioner cannot be permitted to do so in view of the Presidential order issued under Article 359(1) of the Constitution and as such the petitioners have no locus standi to file these petitions in this Court. 14. The matter relating to the legal effect of the Proclamation of Emergency by the President under Article 352(1) of the Constitution and the consideration of the nature of proceedings which are barred on account of the Presidential Order issued under Article 359 (1) of the Constitution came up for consideration before their Lordships of the Supreme Court in Makhan Singh Tarsikka vs. The State of Punjab (3). In the aforesaid case, Gajendragadkar, J., as he then was, speaking for the majority of the Court, observed as under:— "Article 359, on the other hand, does not purport expressly to suspend any of the funda- mental rights. It authorises the President to issue an order declaring that the right to move any court for the enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings in any court for the enforcement of the right so mentioned shall remain suspended for the period during which proclamation is in force or for such shorter period as may be specified in the order. What the Presidential order purports to do by virtue of the power conferred on the President by Art. 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the speci- fied rights. The rights are expressly suspended, but the citizen is deprived of his right to move any court for their enforcement." 15. It was further observed by their Lordships of the Supreme Court in Makhan case (2) that,— "It would be noticed that the Presidential Order cannot widen the authority of the legis- latures or the executive; it merely suspends the right to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order............Art. 359 (1) and the Presidential Order issued under it may cons- titute a sort of moratorium or a blanket ban against the institution or continuances of any legal action subject to 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." It was then observed in the aforesaid case:— "What is the nature of the proceedings which are barred by the Presidential 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 funda- mental rights specified in the Order have been contravened, that proceeding is barred In de- termining the question as to whether a parti- cular proceeding falls within the mischief of the Presidential Order or not, what has to be exami- ned is not so much the form which the proceed- ing has taken, or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief clai- med 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 damental rights, that is a 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. 359(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 claims cannot be effectively adjudicated upon without examin ing the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental right...........If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained." 16. In Mohan Chowdhary vs. The Chief Commissioner, Union Territory of Tripura (4) in a petition under Article 32 of the Constitution for a writ of habeas corpus, a similar objection was raised before their Lordships of the Supreme Court. It was observed by the Supreme Court in the aforesaid case: — "The Order of the President dated November, 3, 1962, already set out, in terms, suspends the right of any person to move any Court for the enforcement of the rights conferred by Arts. 21 and 22 of the Constitution, during the period of the Emergency, Prima facie, therefore, the petitioners right to move this Court for a writ of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency. But even then it has been contended on behalf of the petitioner that Art. 359 does not authorise the suspension of the exercise of the right guaranteed under Art. 32 of the Constitution and that, in terms, the operation of Art. 32 has not been suspended by the President. But even then it has been contended on behalf of the petitioner that Art. 359 does not authorise the suspension of the exercise of the right guaranteed under Art. 32 of the Constitution and that, in terms, the operation of Art. 32 has not been suspended by the President. This contention is wholly unfounded Unquestionably, the Courts power to issue a writ in the nature of Habeas Corpus has not been touched by the Presidents Order but the petitioners right to move this Court for a writ of that kind has been suspended by the Order of the Order of the President passed under Art. 359 (1). The Presidents Order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of Arts 21 and 22. Thus, as a result of the Presidents Order aforesaid, the petitioners right to move this court, but not this Courts power under Art. 32, has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any during the Emergency. In the State of Maharashtra vs. Prabhakar Pandurang Sanzgiri and another (5) it was observed by their Lordships of the Supreme Court : "We find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certained privileges of the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons. We therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges con-ferred on him, but are the conditions subject to which his liberty can be restricted." In K. Ananda Nambiar and another vs. The Chief Secretary to the Government of Madras and others (6) it was held by their Lordships of the Supreme Court: — "But the point still remains that if a challenge is made to the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1), such a challenge is outside the purview of the Presidential Order, and if a petition is filed by a citizen under Art. 32 on the basis of such a challenge, it cannot be said to be barred, because such a challenge is not covered by the Presidential Order at all." In the aforesaid case, following the decision of their Lordships earlier decision in Makhan Singhs case it was further observed: — "The sweep of Art. 359(1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whe ther the citizen in substance, seeking to enforce any of the specified fundamental rights and that means the fundamental rights under Arts. 14, 19, 21 and 22. 14, 19, 21 and 22. Even so, this Court, took the precaution of pointing out that as a result of the issue of the Proclamation of Emergency and the Presidential Order, a citizen would not be deprived of his right to move the appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide, Similarly, it was pointed out that if a detenu contends that the operative provision of the Defence of India Ordinance under which he is detained suffer from the vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential Order, because in terms, it is not a plea which is relatable to the fundamental rights specified in the said order." 17. It was also held in the aforesaid case that if an order of detention is passed by delegate outside the authority conferred upon it by the appropriate Government or if it has been exercised inconsistently with the conditions prescribed in that behalf, a preliminary bar against the competence of the detenus petition cannot be raised under the Presidential Order. The same principle was reiterated by their Lordships of the Supreme Court in Ram Manchar Lohia vs. The State of Bihar another (7) and it was held that if the challenge to the validity of the detention order is made on any right outside the rights specified in Presidential Order, the right of the detenu to move any court in that behalf is not suspended and if a person is detained in violation of the mandatory provisions of Defence of India Act, the petitioner is entitled to be heard. The same principle was also repeated by their Lordships of the Supreme Court in Durgadas Shirali vs. Union of India (8) and it was observed that:— "If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance, rule or order made thereunder on the ground of contravention of Art. 19 because as soon as Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance, rule or order made thereunder on the ground of contravention of Art. 19 because as soon as Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1). Such a challenge is outside the purview of the Presidential Order. For instance 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 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." 18. In G. Sadanandan vs. State of Kerala (9) Gajendragadkar, Chief Justice, laid down the law on the subjects as under "In dealing with writ petitions by which orders of detention passed by the appropriate authorities under R. 30(1)(b) of the Rules are challenged, the Court has consistently recognised 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 the Rules to the subjective satisfaction of the appropriate authorities, empowered to pass orders under the relevant Rule. This Court, no doubt, realises in dealing with pleas for habeas corpus in such proceedings that citizens are detained under the Rules without a trial, and that clearly is inconsistent with the normal concept of the Rule of low in a democratic State. But having regard to the fact that an Emergency has been proclaimed under Art. 352 of the Constitution, certain consequences follow, and one of these consequences is that the citizens detained under the Rules are precluded from challenging the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Arts. 19, 20 and 21. But having regard to the fact that an Emergency has been proclaimed under Art. 352 of the Constitution, certain consequences follow, and one of these consequences is that the citizens detained under the Rules are precluded from challenging the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Arts. 19, 20 and 21. The presence of the Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in res-pect of the alleged violation of the fundamental rights of the detenu. This position has always been recognised by this Court in dealing with such writ petitions." Similar observations were made in Jaichand Lal Sethia vs. The State of West Bengal and others (10) following the decision of their Lordships of the Supreme Court in the cases of Makhan Singh (3) and Durgadas (8). In State of Madhya Pradesh and another vs. Thakur Bharat Singh (11) Shah J, speaking for the unambitious court observed that — "All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others, it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles (1) the sovereignty of the people with limited Government authority, i.e. the Government must be conducted in accordance with the will of the majority of the people. Our federal structure is founded on certain fundamental principles (1) the sovereignty of the people with limited Government authority, i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by by the people; (2) There is distribution of powers between the three organs of the State-legislatives, executive and judicial each organ having some check direct or indirect the other; and (3) rule of law which includes judicial review of arbitrary executive action." 19. In Chief Settlement Commissioner, Punjab and other vs. Om Parkash and others (12) Ramaswami J., observed that: — "In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all admini- strative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrie- ved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State in which govermen- tal action is placed in a privileged position of immunity from control by law. Such a notion is foreign to our basic constitutional concept." 20. The question that a person cannot invoke the jurisdiction of this Court for a writ of habeas corpus in view of the suspension of the fundamental rights conferred under Articles 21 and 22 of the Constitution was raised before this Court in Shamsher Singhs case (1). This Court relied upon the decisions of their Lordships of the Supreme Court in cases of Makhan Singh (3), Ram Manohar Lohiya (7) and Durgadas (8) and held that Articles 21 and 22 of the Constitution and the rule of law was not put under suspension on account of the suspension of fundamental rights guaranteed under Articles 21 and 22 of the Constitution and that it is in the fabric of our Constitution that the executive cannot taken away the liberty of a citizen without the authority of law made by the competent legislature. It was observed by this Court in Shamsher Singhs case (1): — "Fundamental rights undoubtedly will not be available to the citizen on account of their suspension, but the Court can enquire as to whet- her the order under which the person is detained has the sanction of the law behind it It will be competent to see whether the order was passed under the statute under which it purports to have been passed, whether there was any absence of authority, excess of authority or the action was not mala fide. For this it will be for the Court to properly interpret law and then examine the order under which the person is detained. As we have already observed, Article 226 remains unaffected. The Court can certainly entertain the writ petition and examine whether the citi- zen is not debarred from invoking the said aid of the Court." This Court held in Shamsher Singhs case that a petition of habeas corpus was main-tainable under Article 226 of the Constitution even after the declaration of the Emer-gency under Article 352(1) and the issuance of the Presidential Order under Article 359(1) of the Constitution and that within the limited area specified in the passage extracted above, the jurisdiction of this Court could be invoked. 21. Thus it has been held in the aforesaid cases that those pleas cannot at the threshold be said to be barred by the Presidential Order issued Art. 359 of the Consti-tution which are independent of the fundamental rights, the enforcement of which is suspended by the aforesaid Presidential Order and the detenues should be entitled to raise pleas which are not founded upon the fundamental rights guaranteed under Articles 21 and 22 of the Constitution and the validity of such pleas would have to be examined by the Courts. However, it has been argued before us by the learned Additional Advocate General that after the decision of Makhan Singhs case (3) by the Supreme Court and even after the decision of Shamsher Singhs case (1) by this Court important amendments have been made by Parliament both in the Constitution as well as in MISA and on account of the recent amendments introduced in the Constitution by the 38th and 39th Amendment Acts and in the MISA by the Act No. 39 of 1975 which came into force with effect from August 5, 1975 and Ordinance No. 16 of 1975, which was promulgated by the President on October 17, 1975, the locus standi of the petitioners to present write petitions challenging their detention under MISA has been completely wiped out. It may be noticed here that Shamsher Singhs case was decided by this Court on July 15, 1975 and thereafter by the 38th Constitution Amendment Act which came into force on August 1, 1975 Articles 123, 352 and 359 of the Constitution have been amended by the 39th Amendment Act MISA has been placed in the 9th Schedule. We shall in the later part of this order examine the effect of the amendments made in Articles 123, 352 and 359 of the Constitution by the 38th Constitution Amendment Act, and the inclusion of the MISA in the 9th Schedule by the 39th Constitution Amendment Act. However, from the aforesaid amendments made in the Constitution by the two Constitution Amendment Acts referred to above and in the MISA by Act No. 39 of 1975 and Ordinance No. 16 of 1975 we fail to understand as to how the locus standi of the petitioners to approach this Court for a writ of habeas corpus under Article 226 of the Constitution has been taken away. It is a very different thing to say that on account of Constitutional Amendments made in MISA subsequent to the decision of this Court in Shamsher Singhs case, the area of our judicial scrutiny might have been considerably narrowed down and we shall examine this aspect while deciding the other preliminary objection raised by the learned Additional Advocate General But in view of the long suing of decisions of their Lordships of the Supreme Court, which we have catalogued above and the Bench decision of this Court in Shamsher Singhs case (1), we are unable to hold that there is an incapacity in the petitioners at the threshold to invoke the jurisdiction of this Court relating to the matter of detention, or that there is a blanket ban imposed upon the detenues from approaching this Court for a writ of habeas corpus. Personal Liberty and dignity of individual is a human right which has been zealously safeguarded by our Courts. Although it must atonce be stated that the right of personal liberty can be upheld by a Court of law so long as it does not interfere with the liberty of other citizens and is exercised in accordance with laws of the land. 22. We ere unable to accept the argument advanced by the learned Additional Advocate Genera! that on account of the suspension of the right to move a court for the enforcement of the fundamental rights under Articles 21 and 22 of the Constitu-tion, either the right to personal liberty was itself taken away or that the executive possessed an unfettered and unimpaired right of depriving any person of his liberty. It would be hazardous to accept such a wide proposition as the learned Additional Advocate General has so boldly advanced before us. It would mean that even a constable may detain any citizen and because of the suspension of the rights conferred under Arts. 21 and 22 of the Constitution a person would not be able seek any redress from the court although the detention of such person may not only be in violation of the fundamental rights guaranteed by the aforesaid Articles 21 ana 22 of the Constitution but it would also be deprivation of personal liberty throwing over board all the laws of the land. Although the rights conferred under Articles 21 and 22 of the Constitution, cannot be enforced nor the validity of the enactments or regulations be challenged as violative of the provisions of Arts. 21 and 22 of the Constitution but a lawless action cannot be converted in to lawful one and pleas which have no relation to the rights conferred by Arts. 21 and 22 of the Constitution can very well be raised in a petition of habeas corpus under Article 226 of the Constitution of India Thus there is no basis for accepting the plea of total ouster of this courts jurisdiction in the matter of detentions. We are, therefore, unable to hold that detentions orders cannot be challenged on any ground whatsoever. 23. In Green vs. Secretary of State for Home Affairs (13) Lord Wright considered at length the history of ancient common law writ of habeas which from about the end of the sixteenth century or the earlier years of the seventeenth century-came to be used as the normal procedure for protecting the liberty of the subject against unlawful arrests and detentions, particularly by the orders of the executive. In the aforesaid case it was observed by Lord Wright that : "It is clear that the writ of habeas corpus deals with the machinery of justice, not the sub- stantive law, except in so far as it can be said that the right to have the writ is itself part of substan- tive law. It is essentially a procedural writ, the abject of which is to enforce a legal right......The inestimable value of the proceedings is that it is the most efficient mode ever devised by any sys- tem of law to end unlawful detainments and to secure a speedy release where the circumstance and the law so require." 24. The view which we are taking has also been taken recently by the Madhya Pradesh High Court in Shiv Kant Shukla vs. The Additional District Magistrate, Jabalpur and another (14) wherein A. P. Sen J. rejected a similar argument advanced before the Bench founded upon the declaration of Emergency under Article 352 (1) and the Presidential Order under Article 359 (I) of the Constitution and the fact that MISA has substantially been amended. It was held in the case of Shiv Kant (14), that— "Habeas corpus, 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 by the Parliament except in the manner provided by Art. 368 of the Constitution." A bench of the Bombay High Court also rejected the similar plea that the petition of a detenu at the threshold is not maintainable and it was held by their Lord-ships of the Bombay High Court in Krishna Madhaorao Gharate and another vs. The Union of India (15) that on account of suspension of the right to move for the enforcement of the fundamental rights conferred under Articles 21 and 22 of the Constitution, the Rule of law has not been abrogated. 25. In Venkataseshamma vs. The State of Andhra Pradesh and others (Writ Petition N>. 3381 of 1975, decided on August 22, 1975, a Bench of the Andhra Pradesh High Court) observed as under— "It would be seen that the impugned Ordinances do not expressly bar the jurisdiction of the High Court to entertain a petition under Article 226 of the Constitution challenging the validity of the detention order. It is still open to the detenu to move the Court to question the detention order so long as, in so doing, the detenu does not seek to enforce such of their rights conferred by Part III as are specified in the declaration The right to move the Court is taken away only to that limited extent. So long as there is a law authorising the detention and the detention is made in purported exercise of that power, the detenu may challenge the order of detention if such detention is in violation of the provisions of that law. In other words only the grounds of attack on the detention order, are now restricted............Thus the contention that the Ordinances by themselves wholly take away the right to challenge the order of detention is untenable and must be rejected." 26. In other words only the grounds of attack on the detention order, are now restricted............Thus the contention that the Ordinances by themselves wholly take away the right to challenge the order of detention is untenable and must be rejected." 26. In Eshugbayi Eleko vs. Officer Administering the Government of Nigeria (19) Lord Atkin observed; that,— "In accordance with British Jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice." The above said observations nude by Lord Atkin were quoted with approval by Gajendragadkar J., as he then was in Makhan Singhs case (3) and it was observed that— "We must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustain it must ultimately be governed by the Constitution itself. The Constitution is the law of laws; the paramount and supreme law of the country." Thus within the frame-work of the Constitution and the laws of the land this Court is empowered to entertain these petitions of habeas corpus howsoever narrow the power of judicial review might be, and they cannot be dismissed at the threshold on the alleged ground that this Court has no jurisdiction to entertain them. 27 We have then to consider as to what is the area which is still open for our judicial scrutiny after the recent amendments made in the Constitution of India and in the MISA. In other words we have to determine the scope or extent of judicial review in respect of the petitions of habeas corpus before us. Learned counsel submitted that they propose to raise the following contentions for our consideration— (1) That the Constitution (38th Amendment) Act is void in so far as it has amended Articles 123, 352 and 359 of the Constitution. (2) That the proclamation of emergency issued under Article 352(1) of the Constitution by the President on June 25, 1975 and the continuance of emergency declared in the year 1971 are void, and invalid. (3) That the Constitution (39th Amendment) Act, in so far as it his included MISA in the 9th Schedule is also void. (2) That the proclamation of emergency issued under Article 352(1) of the Constitution by the President on June 25, 1975 and the continuance of emergency declared in the year 1971 are void, and invalid. (3) That the Constitution (39th Amendment) Act, in so far as it his included MISA in the 9th Schedule is also void. (4) That the amendments recently made in MISA particularly the provisions of clause (9) of section 16A and the newly inserted section 18 are ultra vires and void. (5) That the orders of detention were in contravention of the mandatory provisions of MISA. (6) That the detention orders were made on extraneous and collateral considerations. (7) That the detention orders were mala fide. 28. Mr. Lodha and Mr. Bhargava appearing for some of the petitioners submitted that even if the subsequent amendments made in the Constitution and MISA are had to be valid the area of judicial review in the matter of detention still remains the same as was declared by this Court in Shamsher Singhs case (1). It was contended that the power of judicial review extends to two grounds, namely (1) whether the orders or proclamation of emergency issued by the President of the detention orders fell within the four corners of law, and (2) whether the authority concerned exercised the power in good faith or for extraneous and collateral purposes. It was further argued that the power of judicial review could not be circumscribed by the Parliament as that would amount to placing restraints on the power of this Court under Article 226 of the Constitution, and would interfere with the independence of the judiciary and the supremacy of the rule of law. We shall examine the aforesaid contentions of the learned counsel for the petitioners with reference to the submissions that they have raised before us. 38th Constitution Amendment Act. 29. Learned counsel for the petitioners contended that clause (4) added to Article 123 and clause (5) inserted to Article 352 of the Constitution by the Constitution (38th Amendment) Act, 1975 are void. It was also contended that clause 1(A) added by the aforesaid Amendment Act to the Article 359 of the Constitution is also invalid. 38th Constitution Amendment Act. 29. Learned counsel for the petitioners contended that clause (4) added to Article 123 and clause (5) inserted to Article 352 of the Constitution by the Constitution (38th Amendment) Act, 1975 are void. It was also contended that clause 1(A) added by the aforesaid Amendment Act to the Article 359 of the Constitution is also invalid. So far as clause 1(A) added to the Article 359 is concerned, it has only made a provision in respect of such rights conferred by Part III of the Constitution, the enforcement of which has been suspended on account of promulgation of the Presidential Order issued under Article 359 (1) of the Constitution as had already been provided by Article 358 in respect of the rights conferred by Article 19. While clause 1 of the Article 359 suspended the rights to move any Court for the enforcement of such rights as have been mentioned in the Presidential Order issued under that provision, the newly inserted clause 1(A) authorises the State to make any laws or to take any executive action during the period the Presidential Order issued under Clause (1) of Article 359 remains in force which might be in derogation of the fundamental rights whose enforcement is suspended by the Presidential Order. The newly inserted clause gives immunity to the legislative enactments or executive actions which the State might make or take in contravention of the provisions of the fundamental rights, whose enforcement have been suspended by the Presidential Order issued under Article 359 (1) of the Constitution during the period the said Presidential Order remains in force. As a matter of fact, in Makhan Singhs case (3) their Lordships of the Supreme Court while pointing out the distinction between Article 358 and 359 of the Constitution referred this deficiency in respect of the provisions of Article 359 and observed that the provisions of Article 358 removed during the pendency of the proclamation of emergency all fetters created on the legislature and executive powers of the State by Article 19 and if the legislature made laws or the executive look action which was inconsistent with the rights guaranteed by Article 19, there validity was not open to challenge either during the continuance of the emergency and even thereafter. It was also pointed out that as soon as the Presidential Proclamation ceases to operate the affect of the provisions of Article 358 would be that all the legislative enactments passed and executive actions taken during the course of the emergency shall be inoperative to the extent to which they came in conflict with the rights guaranteed under Article 19, because as soon as the emergency was lifted Article 19 is automatically revived and the rights conferred thereunder begin to operate. It was also pointed out that legislative or executive actions which contravened Article 19 could not be questioned during the period the emergency lasted and even after the emergency was over but that there was no such provision in respect of legislative enactments made an executive taken in contravention of the rights the enforcement of which is suspended during the period of emergency on account of the promulgation of the Presidential Order issued under Art. 359(1) of the Constitution. Their Lordships observed in the aforesaid case that unless the Parliament made a law granting immunity in respect of legislative enactment made or executive actons taken during the emergency, in contravention of the rights suspended on account of the Presidential Order, the immunity will not follow from the provisions of Art. 359(1) itself, as was the case on account of the provisions of Art. 358 in respect of the rights conferred by Art. 19 of the Constitution. It is, therefore, amply clear that the provisions of clause 1 (A) have been inserted in Art. 359 to grant the requisite immunity in respect of legislative enactment made and executive actions taken during the period of emergency in contravention of the fundamental rights, whose enforcement is suspended during such period on account of the Presidential Order issued under Article 359(1) of the Constitution. Thus the effect of the introduction of clause 1 (A) to Article 359 by the 38th amend-ment is to provide immunity to legislative and executive actions made or taken during the subsistence in respect of contravention of the rights conferred by A tides 14, 21 and 22 which have been suspended on account of the Presidential Order issued under Article 359(1)in the same manner and in addition to that as has already been provided in respect of laws made and executive actions taken in contravention of Article 19 of the Constitution by Article 358 of the Constitution Learned counsel for the petitioners were unable to show as to in what manner the newly inserted clause 1 (A) of Article 359 was invalid. It was held in the District Collector of Hyderabad and others vs. M/s. Ibrahim and Co. etc. (17) that on the issuance of the Proclamation of Emergency the State is, for the duration of the emergency, competent to enact legislation or take executive action by virtue of the provisions of Article 358 notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. Thus Clause 1(A) insetted in Article 359 which merely provides the same protection in respect of laws made and executive actions taken in contravention of the rights suspended on account of the Presidential Order issued under Article 359(1) of the Constitution is absolutely valid in the same manner as is existing Article 358. 30. However, considerable argument was advanced in respect of clauses newly inserted in Articles 123, 352, of the Constitution by the 38th Amendment Act. The argument of the learned counsel was two-fold; firstly it was submitted that the legis-lative competence of the Parliament is circumscribed by the items of the 7th Schedule and as no such item authorises the Parliament to take away the powers of the Courts from questioning the Ordinances made under Article 123 and Proclamation issued by the President under Article 352, the newly added clauses in the aforesaid Article were invalid. We find no substance in this argument inasmuch as the competency for the enactments of the newly added clauses to Articles 123 and 352 of the Constitution arise from the mandatory powers vested in the constituent body by Article 368 of the Constitution. We find no substance in this argument inasmuch as the competency for the enactments of the newly added clauses to Articles 123 and 352 of the Constitution arise from the mandatory powers vested in the constituent body by Article 368 of the Constitution. As has been held by their Lordships of the Supreme Court in Kesava-nanda Bharti (2) the power of amending the Constitution contained in Article 368 is not merely procedural but the aforesaid Article 368 of the Constitution also confers upon the Parliament substantive powers to amend the Constitution subject to the condition: that the basic structure or frame work remain unaltered. Thus as Article 368 of the Constitution provides both the powers and procedure to amend the Consti-tution. It is needless to search for the legislative competence for amending the Con-stitution in the various items included in the 7th Schedule, which has reference only to Article 246 of the Constitution. 31. The second argument in respect of the newly inserted provisions in Article 123 and 352 of the Constitution is that said amendments are contrary to the basic structure of the Constitution. Learned counsel argued that one of the basic features of the Constitution was the supremacy of the Rule of law and that the independence of the judiciary constituted the corner stone of the Constitution. It was submitted that the judicial power exercised by the Courts was supervisory in nature and the said power of judicial review enjoyed by the courts under the Constitution could not be circumscribed by the Parliament nor the same was subject or subordinate to the power of the Parliament. The learned counsel submitted that the power of this Court under Article 226 of the Constitution was to reach in justice wherever it was found and that the said power of judicial review enjoyed by this Court under Article 226 of the Constitution was rendered illusory or was in fact nullified on account of the amendments introduced in Articles 123 and 352 of the Constitution debarring the courts from exercising the powers of judicial review of the Ordinances made by the President and the Proclamation of Emergency issued by him. Learned counsel went to the extent of arguing that this court should not abdicate its powers of scrutinising legislative and executive actions and that the provisions of clause (4) inserted in Article 123 and clause (5) inserted in Article 352 by the Constitution (38th Amendment) Act, were ultra-vires of the powers of the Parliament- On the other hand, Dr. Tewari submitted that the right of judicial review enjoyed by this Court was limited by the Constitution in respect of specified matters and that the same did not violate the basic structure or frame work of the Constitution. He contended that independence of the judiciary was not at all interfered with merely because the Parliament declared that certain matters shall not be subject to judicial scrutiny. It was further contended that as a matter of fact the Supreme Court itself held that the proclamation of emergency issued by the President under Cl. (1) of Article 352 was not justiciable and that the Parliament had merely reiterated what their Lordships of the Supreme Court have themselves decided in Bhut Nath Mate vs. The State of West Bengal (18). 32. We have considered the rival contentions of the learned counsel in this respect. In Dwarka Nath vs. Income Tax Officer (19) it was observed by Suba Rao J; as he then was, in respect of the powers of the High Court under Article 226 of the Constitution:— "This article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designed by used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England."..................To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels." It is no doubt true that the rule of law includes the power of judicial review, but the concept of the power of judicial review, as envisaged by their Lordships of the Supreme Court, does not include unbridled and unrestricted power of consideration of the validity of all legislative enactments and executive actions, by courts of law. 33. 33. In Keshvanand Bhartis case (2) Khanna J observed,— "The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing stature. It is likewise open to the said authority to exclude judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject.Both the above types of constitutional amendments are permissible under Article 368............ In exercising the power of judicial review, it may be mentioned that the courts do not and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essentially to be those of the legislatures." It may be observed in this connection that the courts cannot constitute themselves as super legislature but their primary duty is to uphold the Constitution and the laws without fear or favour. It may also be true that courts are sometimes described sentinels or guardians of liberty of the citizens against the onslaughts made by the executive but one cannot forget that the distribution of powers between the various organs of the State namely the Executive, Legislative and the Judiciary is one of the basic features of our Constitution. It is the duty and function of each of the aforesaid three organs of the Governmental agency to act within its own jurisdiction and the courts normally enjoy the power of judicial review in respect of arbitrary executive actions but in matters which are rather political in nature it is necessary for the judiciary to exercise self-restraint from interfering in the sphere of executive or legislature actions as Krishna Iyer J. speaking for the Supreme Court observed, in Bhut Nath Mate vs. The State of West Bengal (18) — "We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the parapolitical sector. It was argued that there was no real emergency and yet the Proclamation remained unretracted with consequential peril to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls and not to the courts. It was argued that there was no real emergency and yet the Proclamation remained unretracted with consequential peril to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls and not to the courts. The traditional view, sanctified largely by some American decisions, that political questions fall outside the area of judicial review, is not a constitutional toboo but a pragmatic response of the court to the reality of its inadequacy to decide such issues and to the scheme of the Constitution which has assigned to each branch of government in the larger sense a certain jurisdiction. Of course, when a problem which is essentially and basically constitutional although dressed up as a political question is appropriately raised before court, is within the power of the Judges to adjudicate. The rule is one of self-restraint and of subject-matter, practical sense and respect for other branches of government like the legislature and the executive." Thus, in the aforesaid case their Lordships of the Supreme Court clearly held that the question of validity of Proclamation of Emergency or the continuance of the emergency was not justiciable. The Parliament, has, it appears, by enacting clause (5) of Article 352 of the Constitution, only given legislative sanction to what was already law declared by the Supreme Court In Bhut Naths case (IB). Under Article 141 of the Constitution the law declared by the Supreme Court is binding on all courts within the territory of India and if the legislature enacted the same provisions in respect of justiciability of the Proclamation of Emergency issued by the President under Art. 352(1) of the Constitution which had already been declared by the Court in Bhut Naths case (18), it cannot be held that the Parliament has curtailed the jurisdiction of this Court under Art. 226 of the Constitution or has interfered with the Supremacy of law. 34. The learned counsel urged that in A.K. Gopalan vs. State of Madias (20) the provisions of Sec. 14 of the Preventive Detention Act, 1950, was declared void by the Supreme Court on the ground that they violated the provisions of Art. 22(5) as also of Art. 32 of the Constitution as the provision restricted the powers of the Court to the extent so as to render the same almost illusory. It may be pertinent to mention here that the question in Gopalans case was with regard to the validity of the enactment made by the Parliament which was in violation of the provisions of the Constitution but there was no question of one provision in the Constitution being declared violative on account of another provision of the same Constitution. Our Constitution, as we have already mentioned above, provides for the distribution of power to the various organs of the State and there are checks and balances inherently provided in the Constitution itself. Jackson J., observed in Youngstown Sheet and Tube Co. vs. Sawyer (1952)-343 US 579 at page— "With all its defects, delays and inconveni- ences men have discovered no technique for long preserving free government except that the Exe- cutive be under the law, and that the law be made by parliamentary deliberations." 35 While Article 226 of the Constitution authorises this Court to issue writs, orders or directions for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purposes, yet Art. 359(1) itself provides that while & proclamation of emergency is in operation, the President by an order declares that the rights to move any Court for the enforcement of such rights conferred by Part III of the Constitution, as may be mentioned in the Presidential Order and all proceedings in respect thereof, shall remain suspended for the period during which the Proclamation of Emergency is in force or for such shorter period as may be specified in the Presidential Order issued under Article 359(1), of the Constitution. Thus by the very provision of Article 359(1), the issuance of the Presidential Order thereunder, restricts the rights of this Court from enforcing such fundamental rights as may be specified in the Presidential Order. On account of the Presidential Order now in force under Article 359(1) of the Constitution this Court and even the Supreme Court would be unable to give relief to any person in respect of the enforcement of the rights guaranteed under Articles 14, 19, 21 and 22 of the Constitution and to that extent the power of the Supreme Court under Article 32 and the power of this Court under Article 226 of the Constitution has been excluded. Thus the Constitution does impose fetters on the power of the Supreme Court under Article 32 of the Constitution and of this Court under Article 226 of the Constitution and the same can be done by an amendment of the Constitution as well. 36. Gajendragadkar J., speaking for the majority of the Court in Makhan Singhs case (3) observed that in cases of grave national emergency, individual liberty freedom and the majesty of the law can be curtailed and that we must give due weight to the security of the State and public order. If a Presidential Order issued under Article 359 (1) of the Constitution can be permitted to exclude matters relating to enforcement of certain fundamental rights specified in the Presidential Order from judicial review by this Court, we see no reason why clause 5 of Article 352 could not exclude the powers of this Court of judicial review in respect of the Proclamation of Emergency issued by the President under Article 352 (1) of the Constitution. 37. The Constitution has expressly excluded judicial review in several other important matters. We may point out that besides Article 359 (1), Arts. 31(4), 31(6), 74(2), 122(1), 136 (2), 163 (3), 227(4), 262 (2), 329 (a), 361 (1) and 363 (1) afford illustrations where the Constitution has prohibited consideration of certain matters by courts of law. In Article 136 (2) the power of the Supreme Court to grant special leave to appeal from any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces has been excluded. Article 262 (2) authorises the Parliament to make any law providing that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint with respect to use, distribution or control of the water of, or in an inter-State river or river valley. Article 363(1) is coached in similar language as clause (5) of Art. 352 and provides that neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any former Ruler with the Government of India. These provisions show that the Constitution did not regard judicial review as an indispensable or basic feature of the Constitution. In our opinion, by inserting clause (5) in Article 352 and clause (4) in Article 123 similar constitutional inhabitations have been provided for exclusion of judicial review in respect of the Proclamation of Emergency issued by the President and Ordinance issued by him. 38 We are, therefore, firmly of the view that judicial review has not been considered under our Constitution as an indispensable or basic feature and the amend-ments made in Articles 123 and 352 of the Constitution, excluding the power of the courts of law from considering the validity of the Ordinance issued by the President under Article 123 (1) and Proclamation of Emergency issued by the President under Article 352 (1) of the Constitution cannot be held to be void on the ground that such amendments were opposed to the basic features of frame work of the Constitution. We are also unable to accept the submission of the learned counsel for the petitioners that the Parliament merely by amending the provisions of Articles 123 and 352 of the Constitution has either undermined the judiciary or has rendered the powers of this Court under Article 226 of the Constitution illusory or has nullified the same. Declaration and continuance of emergency : 39. Learned counsel for the petitioners argued that the Proclamation of Emergency issued under Article 352 (1) of the Constitution by the President on June 25, 1975 and the continuance of emergency declared in the 1971 are wholly unjustified and void as conditions precedent for declaration of such emergency or continuance thereof did not exist. In substance the argument is that no real emergency existed and the declaration of emergency or continuance thereof were colourable exercise of power by the President. It has been submitted that the said declaration of emergency as well as continuance of the emergency was an Act of bad faith because no circumstances existed for the promulgation of Proclamation of Emergency in June, 1975 and as no real emergency existed the continuance of proclamation of emergency declared in the year 1971 was wholly unjustified. As to whether the circumstances existed for issuing the Proclamation of Emergency is for the President to decide as the matter is left to his subjective satisfaction by the framers of the Constitution. As to whether the circumstances existed for issuing the Proclamation of Emergency is for the President to decide as the matter is left to his subjective satisfaction by the framers of the Constitution. It is the President and the President alone who should be satisfied as to whether emergency really existed or not. Once he was satisfied, he was fully authorised to issue a proclamation of emergency under clause (1) of Article 352 of the Constitution. Moreover, the power of the President to issue a proclamation of emergency under clause (1) of Article 352 of the Constitution was subject to the control and consideration by the Parliament within a period of two months under clause (2) of Article 352 of the Constitution. The Parliament could consider the question of property, reasonableness and legality of the Proclamation of Emergency and could enquire into the existence of the circumstances and if the Parliament was not satisfied that circumstances existed which required the proclamation of emergency than it could refuse to approve the same or could allow a period of two months to elapse. The Proclamation of Emergency issued by the President would automatically elapse unless the same is approved by the Parliament. Thus there is complete control of the legislature on the executive action with regard to the declaration of Emergency. 40. In Bhagat Singh and others vs. Emperor (22) it was observed by Viscount Dunedin, speaking for the Privy Council that :— "The petitioners ask this Board to find that a State of Emergency did not exist. That raises directly the question who is to be the Judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It cannot a state of matters calling for drastic section which is to be judged as such by someone. It is more than obvious that that someone must be the Governor-General and he alone. Any other view would render utterly inapt the whole provision. A state of emergency is something that does not permit of any exact definition: It cannot a state of matters calling for drastic section which is to be judged as such by someone. It is more than obvious that that someone must be the Governor-General and he alone. Any other view would render utterly inapt the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor General." Their Lordships held that the argument that in the proceedings of habeas corpus that the Grown ought to have affirmatively proved before the Court that state of emergency existed and that the Privy Council could upset the judgment of the Governor General as to the existence of the emergency and come to the conclusion that no State of emergency existed was without any foundation on the face itself. It was further held that it was not in any way incumbent upon the Governor General as a matter of law to expound the reasons which induced him to issue declaration of emergency. The same view was taken by the Privy Council in Emperor vs. Banwarilal (23). In Lakhi Narayan Das and others vs. The Province of Bihar (24) the same argument that no circumstances existed which could justify the Governor to promulgate an Ordinance was advanced before their Lordships of the Federal Court. B.N. Mukherjea J., as he then was, in this context observed : — "This obviously is a matter which is not within the competence of Courts to investigate. The language of the section shows clearly that it is the Governor and the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test." The Federal Court relied upon the two decisions of the Privy Council referred to above. 41. In P.L. Lakhanpal vs. Union of India (25) the argument was advanced before their Lordships of the Supreme Court that the continuance of Emergency was a fraud on the Constitution. In this respect their Lordships of the Supreme Court observed :— "Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. 41. In P.L. Lakhanpal vs. Union of India (25) the argument was advanced before their Lordships of the Supreme Court that the continuance of Emergency was a fraud on the Constitution. In this respect their Lordships of the Supreme Court observed :— "Art. 352 itself by Cl. (2) provides that a Proclamation issued under Cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parlia-ment. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened." 42. It was urged in King vs. Halliday (26) that the executive was likely to abuse the powers vested in it. Lord Dunedin observed in this connection that : — "That is true, but the fault, if fault there be lies in the fact that the British Constitution has entrusted to the two Houses of Parliament subject to the assent of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by same judicial body. The danger of abuse is theoretically present; practically, as things exist, it is in my opinion absent." 43. In the King vs. Governor of Wormwood Scrubbs(27) a question was raised that emergency had ceased to exist. The question was replied as under :— "The answer to that contention is that even if it is material to consider whether the military emergency has come to an end, it is not a matter which this Court can consider; whether the emergency continues to exist or not it is for the executive alone to determine." The principle in the case of Rex vs. Halliday (26) was applied to the question of continuance of emergency and it was observed by Lord Bading : "The same principle must apply to the question of the continuance of the military emergency. The effect of that decision is to place upon the executive the responsibility of determining whether the necessary facts exist and to take away from the Courts the power which they would otherwise have had of dealing with such cases as the present. It is of course always to be assumed that the executive will act honestly and that its powers will be reasonably exercised. When once the Court is satisfied that the proclamation was validly issued and that the war is still continuing, it has no power to interfere and to consider whether or not circumstances exist which justify the continuance of the proclamation." A similar argument was advanced in Makhan Singhs case (3) where it was urged that during the operation of the Presidential Order the executive is likely to abuse its powers and the citizens may have no remedy. It was held by the Supreme Court in the aforesaid case that this argument was essentially political. In Bhut Naths case (18) the Supreme Court held that the question that there was no real emergency and yet the proclamation of emergency has not been retracted with consequential peril to fundamental rights was essentially a political nonjusticiable issue It was also pointed out in that case that pragmatic respond of the court to the reality of its inadequacy to decide such issues, which by the scheme of the Constitution have been assigned to a different branch of the Government and the rule of self restraint and practical sense and respect for other branches of Government like the legislature and the executive would restrain the courts from adjudicating upon such matters. 44. In Rao Birinder Singh vs. The Union of India and others (28) provisions under Article 356, which are almost identical with the provisions of Article 352 of the Constitution, were subject matter of consideration and it was observed by their Lordships of the Punjab and Haryana High Court : "Article 356 itself provides a machinery for reconsideration of the Presidents Proclamation by Parliament. It only continues if it is approved by Parliament according to sub-Article (3), but ceases to operate if it is either not approved or if the approval is not forthcoming within two months of its date. All matters con- nected with such a Proclamation are thus open to debate in both the Houses of Parliament. It only continues if it is approved by Parliament according to sub-Article (3), but ceases to operate if it is either not approved or if the approval is not forthcoming within two months of its date. All matters con- nected with such a Proclamation are thus open to debate in both the Houses of Parliament. So the Constitution has given power to Parliament to reconsider the Proclamation of the President... If Parliament, in its supreme wisdom is not impressed with the constitutionality, the legality or even the propriety of the Proclamation, it will not give its approval to it. ............the reconsideration of the Proclama- tion has specifically been vested by the Constitu- tion in Parliament and that, in my opinion, ex- cludes the jurisdiction in this Court so far as the Proclamation is concerned in that respect. No- thing has been said against the power of Parlia- ment to approve or to withhold approval of the Proclamation. There is not even a suggestion that Parliament has done anything beyond its constitutional powers. It is a constitutional power and it is a power which, as I have said, excludes the jurisdiction of this Court to consider any aspect of the Proclamation of the President having been expressly left by the Constitution within the sphere of powers of Parliament. So this argument on the side of the petitioner that the Proclamation of the President is justiciable in any aspect does not prevail either." 45. In view of the aforesaid discussion we hold that the declaration of emergency by the President; under Article 352(1) of the Constitution and the question of continuance of emergency are more or less political and non-justiciable matters. In our opinion, neither the question as to whether circumstances existed to justify the issuance of proclamation of emergency nor the bonafides of the President in issuance such a proclamation can be agitated before a Court of Law including this Court. It would not be in public interest to disclose the reasons which led to the issuing the pro-clamation of emergency by the President, and in our opinion the court of law would be an inappropriate forum for the determination of the aforesaid question. It would not be in public interest to disclose the reasons which led to the issuing the pro-clamation of emergency by the President, and in our opinion the court of law would be an inappropriate forum for the determination of the aforesaid question. This position is further fortified by the provisions of newly inserted clause(5) of Art. 352 whereby the jurisdiction of this Court to consider question relating to the validity of the declaration of emergency or the continuance thereof has been expressly excluded. How-ever, in case a proclamation of emergency issued under Art. 352 does not recite that such emergency was declared on account of the fact that the security of India or any part thereof was threatened by war or external aggression or internal disturbance then such an order would not be considered as one issued for the objects stated in clause (1) of Article 352 of the Constitution and then it would not be protected by the umbrella unfolded by the newly inserted clause 5 of Article 352. We have already quoted the Proclamation of Emergency issued by the President on June 25,1975, in the earlier part of this order. The same clearly states to have been issued on account of security of India being threatened by internal disturbances, We find the aforesaid Proclamation of Emergency is in conformity with the provisions of Article 352(1) of the Constitution and, therefore, the same entitled to be protected by the umbrella extended by clause 5 of Article 352 of the Constitution. 46. Mr. Bhargava also argued that the Presidential Proclamation did not specify as to whether the President was satisfied in respect of the existence of grave emergency and that no such satisfaction was recorded in the proclamation dated June 25, 1975. We may, however, observe that this argument is devoid of any force. A similar argument was advanced before the Supreme Court in Lakhanpals case (25) that the Proclamation of Emergency issued by the President under Article 352 of the Constitution was not in terms as it did not state that the President was satisfied that a grave emer-gency existed. The Proclamation under consideration before their Lordships of the Supreme Court was identical to the one with which we are concerned. The Proclamation under consideration before their Lordships of the Supreme Court was identical to the one with which we are concerned. Their Lordships of the Supreme Court were pleased to observe in Lakhanpals case (25),— "The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not see that the Article requires the condition precedent for the exercise of the power that is, the Presidents satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency." It was then argued by Mr. Bhargava that there was nothing in the Proclamation of Emergency to show that there was imminent dinger of internal disturbance. According to the learned counsel there must have been either civil war or imminent danger of civil war and Presidents satisfaction in respect thereof should have been recorded in the Proclamation of Emergency. As has been held by their Lordships of the Supreme Court in Lakhanpals case (25) it is for the President to be satisfied about the existence of the grave emergency and as to that whether an imminent danger of internal disturbance threatened to the security of India. Neither clause (1) nor clause (3) of Article 352 requires that President should state in Proclamation of Emergency that he was satisfied about the existence of imminent danger nor it requires that the satisfaction of the President about the existence of grave emergency should be recorded in the Proclamation. We are of the view that all that is necessary is that the President should be satisfied about the existence of grave emergency and that the security of India was threatened on account of internal disturbance or imminent danger of internal disturbance and once the Proclamation of Emergency is issued by the President under Cl. (1) of Article 352 declaring that grave emergency existed thereafter it is not for the Courts to enquire as to whether the President was satisfied or not in that respect. Constitution 39th Amendment Act. 47. The only provision which has been challenged by the learned counsel for the petitioners in the 39th Constitution Amendment Act is one by which MISA has been included in the 9th Schedule. Constitution 39th Amendment Act. 47. The only provision which has been challenged by the learned counsel for the petitioners in the 39th Constitution Amendment Act is one by which MISA has been included in the 9th Schedule. The attack against it is based on the ground that the effect of inclusion of MISA in the 9th Schedule is to remove the provisions thereof from judicial scrutiny. We are unable to appreciate the submission because ever since Art. 31-B was introduced in the Constitution by the Constitution (First Amendment) Act, 1961, Acts and Regulations specified in the 9th Schedule have been placed under the protective umbrella of Article 31-B and their validity with regard to the inconsistency of any of the provisions thereof with the Fundamental Rights conferred by Part III of the Constitution could no longer be subject matter of judicial review. The list of Acts and Regulations included in the 9th Schedule has since then been enlarged by the Constitution (4th Amendment) Act and subsequent amendments of the Constitution leading upto Constitution (39th Amendment) Act. However, the validity of Article 31-B has been upheld by their Lordships of the Supreme Court and therefore there is no reason for us to hold that the inclusion of the MISA in the 9th Schedule by 39th Constitution Amendment Act was in any way invalid or void. 48. In Kesave Nanda Bhartis case (2) Ray J., (present Chief Justice of India) observed: — "The words "without prejudice to the generality of the provisions contained in Article 31A" occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they infringe Part III of the Constitution. Article 31B need not relate to any particular type of legislation. Article 31B gives a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. Art. 31A protects laws in respect of five subject matters from the challenge of Articles 14, 19 and 31, but not retrospectively. Article 31B protects Scheduled Acts and the Regulations and none of the Scheduled Acts are deemed to be void or even to have become void on the ground of contravention of any fundamental right.............................................in Article 31B has been held by this Court to be valid amendment. Article 31B protects Scheduled Acts and the Regulations and none of the Scheduled Acts are deemed to be void or even to have become void on the ground of contravention of any fundamental right.............................................in Article 31B has been held by this Court to be valid amendment. Article 31B has also been held by this Court to be an independent provision. Article 31B has no connection with Article 31-A." 49. Chandrachud J., also made the following observations in Kesavananda Bhartis case (2) :— "The validity of Art. 31-B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to reopen that question; nor indeed did the learned counsel for the petitioner challenge the validity of that article. In State of Bihar vs. Kameshwar Singh (1952 SCR. 889 = AIR 1952 SC 352) a similar contention was considered and rejected by Patanjali Sastri, C. J., who spoke for the Court. The same view was reiterated in Visweshwar Rao vs. The State of Madhya Pradesh, 1952 SCR 1020 = ( AIR 1952 SC 252 ) by Mahajan, J. The argument fell to be considered once again in N. B. Jeejeebhoy vs. Assistant Collector Thana Prant, Thana (1955) 1 SCR 636 = (AIR. 1865 SC 1095) but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of Article 31-B "Without prejudice to the generality of the provisions contained in Art. 31-A", only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity even if they did not attract Art. 31A. If every Act in the Ninth Schedule has to be covered by Art. 31A, Art. 31-B could become redundant. Article 31-B was, therefore, held not to be governed by Art. 31-A". Thus when the constituent body has in its wisdom considered it proper to include MISA in the 9th Schedule to the Constitution, it cannot be accepted that such inclusion was colourable exercise of powers by the Parliament or was a fraud on the powers of the constituent body. MISA was included in that Schedule as several Acts have already been so included in the 9th Schedule. MISA was included in that Schedule as several Acts have already been so included in the 9th Schedule. MISA is, therefore, immune from challenge by reason of protection given to the 9th Schedule by Article 31-B. It has been held by the Supreme Court consistently that Article 31-B is independent of Article 31-A and the argument of the learned counsel for the petitioners that the protection of Article 31-B would not be available to MISA as it was not related to agrarian reforms is entirely futile and cannot be accepted. We, therefore, repel this submission of the learned counsel for the petitioners and hold that the inclusion of MISA in the 9th Schedule by the Constitution (39th Amendment) Act, 1975 is valid. MISA Amendments 50. Amendments introduced in MISA by the Ordinances No. 4 of 1975, and No. 7 of 1975 were later on incorporated in Art No. 39 of 1975 which came into force on August 5, 1975. Thereafter the Constitution (39th Amendment) Act came into force on August 10,1975 which included MISA in the 9th Schedule. As the aforesaid amendments introduced in the MISA prior to its inclusion in the 9th Schedule; they are placed under the protective umbrella unfolded by Article 31-B and the 9th Schedule appended to the Constitution, as such those amendments can no longer be questioned in a court of law with regard to their validity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution. There is no challenge before us in respect of MISA amendments that the Parliament had no legal competence to enact them. In this view of the matter the validity of the aforesaid amendments cannot be challenged in this Court. The MISA was further amended by the Ordinance No. 16 of 1975 which came into force on October 17, 1975 and the amendments introduced thereby in Section 16 A and the newly inserted section 18 have been the subject matter of considerable controversy before us. The MISA was further amended by the Ordinance No. 16 of 1975 which came into force on October 17, 1975 and the amendments introduced thereby in Section 16 A and the newly inserted section 18 have been the subject matter of considerable controversy before us. It was argued by the learned counsel for the petitioners that the introduction of sub-section 9 of Section 16 A by the aforesaid Ordinance 16 of 1975 has rendered the right of this Court of considering the matter of detention of citizens nugatory or at least illusory, as the grounds of detention are not required to be furnished to the detenue concerned and the officers of the State have been prohibited from producing the grounds and other relevant material before this Court. It was argued that the provisions of clause 9 of section 16 A of MISA are in the first place violative of the basic structure or frame work of the Constitution and in the second place the said provisions restricted the power of judicial review of this Court under Article 226 of the Constitution and are void on that ground. Thirdly, it was argued that the newly inserted provision of section 16A reduced the dignity and freedom of the individual which have been enshrined to the preamble of the Constitution and are in contravention thereof. 51. So far as the first contention of the learned counsel for the petitioners is concerned the matter stands concluded by the recent decision of their Lordships of the Supreme Court in Srimati Indra Nehru Gandhi vs. Shri Raj Narain (29). It was held in the aforesaid case that the theory of basic structure of basic freedom of the Constitution is not applicable in ordinarily legislative measures, but it has been made applicable by Kesavananda Bhartis case (2) only to the Constitutional amendments. It was observed by Ray, Chief Justice of India, in Srimati Indra Nehru Gandhis case— "To accept the basic features or basic structure theory with regard to ordinary legislation would mean that there would be two kinds of limitations for legislative measures. One will pertain to legis- lative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage- or destory basic features or basic structures. One will pertain to legis- lative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage- or destory basic features or basic structures. This will mean rewriting the Constitution and robbing the legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the legislature." It was further observed by the Honble Chief Justice— "Legislative measures are not subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesava- Nanda Bhartis case ( AIR 1973 SC 1461 ) (supra) is that the 29th Amendment which put the two sta- tues in the Ninth Schedule and Article 31B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights." In the aforesaid case Mathew J. observed,— "But the Act cannot be attacked. If I may say so, for a collateral reason, namely, that the provisions of the Act have destroyed or damaged some other basic structure, say, for instance, democracy or separation of powers." 52. In the same case Chandrachud J. observed— "Ordinary laws have to answer two tests for their validity; (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Consti- tution, and (2) it must not offend against the provisions of Article 13(1) and (2) of the Consti- tution. "Basic structure by the majority judg- ments is not a part of the fundamental rights nor indeed a provision of the Constitution. The theo- ry of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. The power to amend the fundamental instrument cannot carry with it the power to destory its essential features, this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordi- nary laws made under the Constitution." 53. The power to amend the fundamental instrument cannot carry with it the power to destory its essential features, this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordi- nary laws made under the Constitution." 53. It was further observed by Chandrachud, J.— "No objection can accordingly be taken to the constitutional validity of the two impugned Acts on the ground that they damage or destroy the basic structure. The power to- pass these Acts could be exercised retrospectively as much as prospectively." We are, therefore, firmly of the view that in the face of the aforesaid decision of their Lordships of the Supreme Court in case of Smt. Indra Nehru Gandhi it is not open to the learned counsel to challenge the amendments made in MISA on the ground that such amendments violated the basic structure or basic features of the Constitution. 54. In respect of the second submission in this context that the provision of clause (9) introduced by the section 16A of MISA contravened the power of judicial view of this Court under Article 226 of the the Constitution, great reliance was placed by the learned counsel on the decision of their Lordships of the Supreme Court in the case of Mohd. Maqbool Damnoo Vs. The State of Jammu and Kashmir (30). In that case it was argued that the provision of Preventive Detention (Amendment) Act, 1964, was in conflict with Section 103 of the Constitution of Jammu and Kashmir which is analogous to Article 226 of the Constitution of India. The provision in question prevented the officers of the State from placing the grounds of detention before the Court, and it was argued that legislature has no right to make the exercise by the High Court of its jurisdiction under Section 103 illusory. The provision in question prevented the officers of the State from placing the grounds of detention before the Court, and it was argued that legislature has no right to make the exercise by the High Court of its jurisdiction under Section 103 illusory. However, in that case their Lordships of the Supreme Court did not decide the question as to whether the proviso in question was liable to be struck down as void being violative of section 103 of the Constitution of Jammu and Kashmir as they held that the High Courts and the Supreme Court were free to call upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenue was being detained in accordance with law. As we have already observed above, that the power of judicial review is not all pervading power and can be restricted by Parliament in particular circumstances. If the Parliament, which has plenary powers of legislation thought that there was grave threat to the security of India and in order to meet the extraordinary situation it was necessary to confer upon the executive extraordinary powers, it cannot be said that the Parliament acted beyond its competence. However, such extraordinary powers are restricted to the period during the grave emergency would subsist. There is no doubt that personal liberty of the indiv-idual is a cherished human ideal but the Parliament is entitled to make laws to put fetters on the right of personal liberty in the interest of national security. In this context Lords Atkinson speaking in the House of Lords observed in King vs. Halliday (31) as under:— "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement... If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned that enactment and the orders made under it, if intra vires, do not infringe upon the Habeas Corpus Acts in any way whatever, or take away any rights conferred by Magna Charta, for the simple reason that the Act and these Orders become parts of the law of the land. 55. 55. In Liversidge vs. Sir John Anderson and another (32) Lord Wright speaking in the House of Lords observed, "The Secretary must now act on his own responsibility if he has reasonable cause to believe, that is, believes that he has in his own mind what he thinks is reasonable cause. If that is his mental state, the duty to act in the national interest attaches. That is a higher duty than the duty to regard the liberty of the subject. I cannot see any ground for holding that the performance of that duty is to be subject to the decision of a Judge, who cannot possibly have the full information on which the Minister has acted or appreciated the full importance in the national interest of what the information discloses. In these cases full legal evidence or proof is impossible, even if the Secretary does not claim that disclosure is against the public interest, a claim which must necessarily be made in practicably every case, and a claim which a Judge necessarily has to admit. To a large extent the sources of information must be secret..................I might go further and say that the court is not merely an inappropriate tribunal but one the jurisdiction of which is unworkable and even illusory in these cases. In my judgment, a court of law could not have before it the information on which the Secretary acts, still less the back ground of statecraft and national policy which is what must determine the action which he takes on it." Lord Wright further observed in the aforesaid case at page 260, — "What is involved is the liberty of the subject. Your Lordships have had your attention called to the evils of the exercise of arbitrary powers of arrest by the executive and the necessity of subjecting all such powers to Judicial control , ...All the courts to-day and not least this House, are as jealous as they have ever been in upholding the liberty of the subject. But that liberty is a liberty confined and controlled by law, whether common law or statute. It is, in Bureks words, a regulated freedom It is not an abstract or absolute freedom. Parliament is supreme. But that liberty is a liberty confined and controlled by law, whether common law or statute. It is, in Bureks words, a regulated freedom It is not an abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty." It was also observed by Lord Wright in Liversidges case— "The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible Government which has evolved. If extraordinary powers are here given, they are given because emergency is extra- ordinary and are limited to the period of the emergency." 56.In A.K. Gopalan vs. State of Madras (33) Kania, C.J. observed,- "..................the Courts are not at liberty to declare an Act void because in their opinion it, is opposed to a spirit supposed to pervade the Constitution but not expressed in words Where the fundamental law has not limited either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights." Mahajan, J. in the aforesaid case also observed,— "It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words. It is difficult on any general principles to limit the omnipotence of sovereign legislative power by judicial interposition except in so far as the express words of a written Constitution give that authority." Ray, Chief Justice, also observed in Smt. Indra Nehru Gandhis case (29) that the Constitution permits by amendment exclusion of judicial review in a matter where such exclusion is needed in the larger interest of the security of the State. The reason for exclusion of judicial review appears to be that the courts have no access to the material that makes them incompetent to consider such matters. It was argued before us that although clause 9 of section 16-A has precluded the officers of the State from producing the grounds of detention and other relevant material before the court, yet this Court in its supervisory judicial powers would be competent to call for the relevant material, including the grounds of detention, to find out as to whether the power of detention has been exercised in accordance with law. We are unable to accept this contention inasmuch as during the period, grave emergency subsists, it may not be proper or reasonable, as held by the Privy Council in Liverledges case that it would be inappropriate for the courts of law to decide the question as to whether the detention was justified as the competent authority under the law could not disclose the relevant information or material in the larger national interests. This Court cannot call upon the officers of the State to disclose the information contrary to the dictates of law and as clause 9 of section 16-A forbids them from producing the grounds of detention and other relevant material before any court, this Court cannot call upon them to disobey the law. We may also point out that while the power of judicial review has been restricted by the provisions of section 16A yet ample safeguards have been provided by the Parliament in matters of detention under the MISA. In the first instance the prescribed authority has to pass an order after complying with the provisions of section 3 as has also to give a declaration under sub-section (2) or (3) of Section 16A. Then the order passed by the competent authority would be subjected to review within 15 days by appropriate Government. In the first instance the prescribed authority has to pass an order after complying with the provisions of section 3 as has also to give a declaration under sub-section (2) or (3) of Section 16A. Then the order passed by the competent authority would be subjected to review within 15 days by appropriate Government. Thereafter the appropriate Government is further required to reconsider the matter within 4 months of the declaration under sub-section 2 or 3 of Section 16A and subsequent thereto at intervals of 4 months. Then sub-section (8) of section 16A provides for consideration of the matter by the Central Government and thus elaborate steps have been provided in the Act for review, consideration and reconsideration by the various authorities at different levels so as to ensure that personal liberty is not put in jeopardy on account of the abuse of powers by some officials of the State. Thus although judicial review by courts of law has been restricted to considerable extent by the introduction of section 16A of MISA yet the administrative machinery has been devised for the consideration of the matter of detention of an individual, not only by the competent authority under section 3 of the Act but by the State Government and the Central Government and also for reconsideration of the matter at an interval of every four months. In our opinion, as sufficient safeguards have been provided under section 16A of MISA and it should be borne in mind that the provisions of section 16A are only to remain in force till the emergency subsists. In times of grave emergency certain restrictions have to be placed on personal freedom of the individual for the common good. Extraordinary powers have no doubt to be given to the executive during the period of grave national emergency and section 16A is an illustration of the same. As Justice Jackson very aptly observed.— "The choice is not between order and liberty. It is between liberty with order and anarchy without either." Under these circumstances, we are unable to hold that section 16A of MISA is invalid on the ground of alleged contravention of the powers of judicial review of this Court- 57. As Justice Jackson very aptly observed.— "The choice is not between order and liberty. It is between liberty with order and anarchy without either." Under these circumstances, we are unable to hold that section 16A of MISA is invalid on the ground of alleged contravention of the powers of judicial review of this Court- 57. Then it was argued by learned counsel for the petitioners that the dignity and freedom of individual which is one of the basic tenants of the Preamble of the Constitution has been taken away or seriously impaired. It was argued that the concept of the freedom and liberty of individual was not only restricted but was destroyed by the amended provisions of section 16A of MISA. 58, Ray, Chief Justice observed in the aforesaid case of Smt. Indra Nehru Gandhi vs. Rajnarain (29),— "Articles 245 and 246 give plenary powers to Legislatures to legislate. The only question is whether any provision of the Constitution is viola- ted. The power of plenary body is not to be construed like the power of a delegate. The lar- gest kind of power will be attributed to Legislature, The only prohibition is with reference to the provisions of the Constitution. The Constitution is the conclusive instrument by which powers are affirmatively created or negatively restricted. The only relevant test for the validity of a statute made under Article 245 is whether the Legislation is within the scope of the affirmative grant of power or is forbidden by some provision of the Constitu- tion." Mathew J. observed in the aforesaid case, — "Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provi- sions enacted in the Constitution which could operate a? limitation upon that power. The pre- amble, though a part of the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great concepts set out in the preamble are delineated in the various provisions of the Consti- tution. limitation upon that power. The pre- amble, though a part of the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great concepts set out in the preamble are delineated in the various provisions of the Consti- tution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established, the equality and nature of justice, political, social and economic which was their desideratum the content of liberty of thought and expression which they entrenched in that document, the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution as established. These specific provi- sions, either separately or in combination deter- mine the content of the great concepts set out in the preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the preamble." Thus in order to declare any provision of section 16 A of MISA invalid it must be shown that either the Parliament had no legal competence to enact the said provi-sions or that it was ultra vires or void on account of the contravention of some specific Article of the Constitution. We are unable to accept the contention of the learned counsel for the petitioners that section 16 A should be declared invalid on the alleged ground that the provisions thereof contravene the noble sentiments expressed in the preamble to the Constitution, so long it has not been shown that the particular enactment is contrary to specific provisions of the Constitution. An ordinary law cannot be declared to be invalid merely by reason that it contravenes the vague concepts of democracy, justice, liberty or equality contained in the Preamble to the Constitution. The validity of the provisions of a law have to be tested only with reference to the provisions incorporated in the Constitution and not merely on the ground that they are opposed to the spirit of the Constitution. 59. The validity of the provisions of a law have to be tested only with reference to the provisions incorporated in the Constitution and not merely on the ground that they are opposed to the spirit of the Constitution. 59. It was next argued by the learned counsel for the petitioners that the right to personal liberty is a natural or common law right and the same could not be taken away by section 18 of MISA. In Kesavananda Bhartis case (2) Ray, the present Chief Justice, observed that the doctrine of natural right is nothing but a foundation of shifting sands. 60. Khanna J. observed in the aforesaid case;— "The natural rights have, however,been treated to be not of absolute character but such as are subject to certain limitations. Man being a social being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the genaral weal, No one has been allowed to so exercise his rights as to imping upon the rights of others. Although different streams of thoughts still permit, the later writers have gene- rally taken the view that natural rights have no proper place outside the Constitution and the law of the State." 61. Palekar J. observed in the same case,— "The so-called natural rights which were dis- covered by philosophers centuries ago as safe- guards against contemporary political and social oppression have in course of time, like the prin- ciple of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognised in modern political constitu- tions only to the extent that organised society is able to respect them. That is why the Constitu- tion has specifically said that the rights are con- ferred by the people on themselves and are thus, a gift of the Constitution." 62. Mathew J. also observed in aforesaid case,— "That all natural rights are liable to be limited or even taken away for common good is itself a principle recognised by all writers on natural law However, even though mans natural rights are commonly termed absolute and inviolable, they are limited by the requirements of the universal order to which they are subordinated................. It only shows that Fundamental rights like natural rights are liable to be limited for the common good of the society." .......... ......... ......... ......... Natural law cannot supplement positive law; positive law must provide the practical solution in the choice of one measure rather then another in a given situation." 63. His Lordships further observed : "......The natural law, itself recognises that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for the common good." Beg J. observed that he was not prepared to accept any natural law theory and that recognising some vague principles of natural justice could not invalidate the enactments of the fully competent legislative authorities. 64 Chandrachud J. observed in the aforesaid case,— "The natural justice theory stands, by and large, repudiated to-day. The notion that socie- ties and governments find their sanction on a supposed contract between independence indivi- duals and that such a contract is the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value." Thus in Kesavananda Bhartis case (2) it has been definitely held that natural right, if any, is liable to be limited for the common good of the society, and that prima facie rights can be taken away or abridged in the special circumstances. The natural right of personal liberty is hedged, as we have already observed to the restrictions that they are subject to the Constitution and the laws of the land. 65. In Union of India vs. J. N, Sinha (34) it was observed by their Lordships of the Supreme Court: — "Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so. But if a statutory provision either specifically or by necessary impli- cation excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory autho- rity and read into the concerned provision the principles of natural justice." 66. In our view the right of personal liberty has been incorporated in Art. 21 of the Constitution which provides that no person shall be deprived of his personal liberty except according to the procedure established by law Thus the right of personal liberty which could only be exercised subject to the laws of the land, has in our opinion been elevated, and enshrined in Art. 21 of our Constitution and has been given the status of a fundamental right by the framers of our Constitution. In this manner the right of personal liberty has been placed at a higher pedestal of fundamental rights, included in part III of the Constitution, and it has been given a superior place than a natural right. Once the natural or common law right of a personal liberty has been incorporated in Art. 21 and given a place of pride as a fundamental right in our Constitution, we do not think that any natural or common law right of personal liberty existed in our country apart from the fundamental right enshrined in Art. 21 of the Constitution. There is no doubt that the said right of personal liberty would have to be exercised subject to the provisions of Article 22 of the Constitution and the restrictions imposed thereupon by the laws of the land. Sec. 18 of MISA, therefore, appears to have been enacted by the Parliament merely as a matter of abundant caution and that is why it has been stated in section 18 that no person detained under the MISA shall have any right of personal liberty by virtue of natural law or common law, if any. Sec. 18 of MISA, therefore, appears to have been enacted by the Parliament merely as a matter of abundant caution and that is why it has been stated in section 18 that no person detained under the MISA shall have any right of personal liberty by virtue of natural law or common law, if any. The incorporation of words if any in the aforesaid provision amply demonstrates that the Parliament did not recognise the existence of any natural or common law right, of personal liberty and section 18 has been introduced in MISA in order to meet the possible challenge to the detentions made under the Act, based on alleged natural law or common law right of personal liberty. However, it has been held by the Supreme Court in J.N. Singhs case (35) and also in Kesavananda Bharis case (2) that the natural or common law right, if any, is subject to the specific laws enacted on the subject. Therefore, the validity of section 13 cannot be challenged on the ground that natural or common law right was inviolable or inevitable. 67. Learned counsel for the petitioners argued that the right of personal liberty was recognised by courts in this country even prior to the promulgation of the Constitution of India and the decisions of Calcutta High Court in Shib Nath Banerjee and others vs. A. E. Porter and others (35), of Nagpur High Court in Vimla Bai Deshpande vs. Emperor (36), of the Federal Court- Keshan Talpade vs. Emperor and of the Privy Council in Emperor vs. Sibnath Banerji and others (37) have been cited as illustrations on the point. 68. We have already observed that personal liberty is a cherished human ideal but it has no where been recognised that there is an unfettered right of personal liberty. Such a right has always been subjected to the laws of the land. After the Constitution has come into force all rights are subject to the provisions of the Constitution, it being the law of all laws, the Supreme law of the land. Such a right has always been subjected to the laws of the land. After the Constitution has come into force all rights are subject to the provisions of the Constitution, it being the law of all laws, the Supreme law of the land. Even in the cases relied upon by the learned counsel for the petitioners it has been laid down that it was not for the Courts to criticize the propriety of the laws made by the Legislature but their duty is only to determine the validity of such laws and if they are found valid then to administer to them. It has also been recognised that in times of emergency the executive has to be given extraordinary powers which may have the effect of keeping out, to some extent, judicial scrutiny of the acts done by the Executive. Ofcourse, the Courts are competent to consider whether the liberty of the subject has been touched except in strict compliance with the law But as we have observed above the founding fathers thought it proper to incorporate the so called natural or common law right of personal liberty in Article 21 of the Constitution and raise it to the status of the fundamental rights. Although its exercise is still limited by the laws of the land and the provisions of the Constitution. We do not, therefore, at all feel impressed by the argument of the learned counsel for the petitioners, that after the Constitution has come into force there is no any natural or common law right of personal liberty left existing in this country and even if any such right did exist it could be regulated or abridged by law made by the competent Legislature. As the Parliament in its wisdom considered that the right of personal liberty should exist subject to the provisions of Articles 21 and 22 of the Constitution and the laws of the land including MISA, it has declared that no natural or common law, right of personal liberty exists apart from the right recognised by the laws of the land. We are, therefore, unable to hold that section 18 of MISA is invalid on any ground. 69. We are, therefore, unable to hold that section 18 of MISA is invalid on any ground. 69. The last question that arises for consideration is as to whether the remaining three grounds sought to be urged by the learned counsel for the petitioners in respect of the validity of the detention orders could be raised before this Court in these Habeas Corpus Petitions. Learned counsel for the petitioners contend that the scope of enquiry in the matters of detention has not been altered on account of the recent amendments made in the Constitution and the MISA and that the area of judicial review of this Court in respect of the orders of detention continues to be the same as has been held in Shamsher Singhs case (1) In the aforesaid case, a Bench of this Court expressed the opinion that in respect of matters of detention, the scope of judicial review of this Court extend to three matters, namely,— (1) Whether the mandatory provisions of MISA were complied with or in other words, a valid order of detention was passed by a competent authority, (2) Whether the order of detention was passed in excess or in derogation of authority; and (3) Whether the order of detention was mala fide, namely, that the authority passing the detention orders was actuated by improper motives or that the reasons for which detention was ordered were irrelevant and had no proximity with the object of MISA On the other hand, learned Additional Advocate General submits that even if there is any power of judicial review left in the matters of detention, then the same is extremely narrow. 70. We have to consider as to whether the amendments introduced in MISA by enacting clause (9) of section !6 A have brought about any change in the legal position as declared by this Court in Shamsher Singhs case (1). Learned counsel for the petitioners relied upon the decision of their Lordships of Delhi High Court in Mrs. Bharti Naiyar vs. Union of India (Criminal Writ No. 121/1975, decided on September 15, 1975) and argued that the power of judicial review of this Court is available to the limited extent as held by their Lordships of the Supreme Court in Makhansinghs case (3). Bharti Naiyar vs. Union of India (Criminal Writ No. 121/1975, decided on September 15, 1975) and argued that the power of judicial review of this Court is available to the limited extent as held by their Lordships of the Supreme Court in Makhansinghs case (3). But it may be noted that Bharti Naiyars case was decided by the Delhi High Court before MISA was amended on October 17, 1975 by Ordinance 16 of 1975 Besides the three grounds mentioned above, which have been referred to in Shamsher Singhs case (1) the only other ground indicated in Makhan Singhs case (3) by their Lordships of the Supreme Court in respect of which the power of judicial review of this Court could extent, in matters of detention under the relevant law, is as to whether the Act or rules pertaining to the law of detention were void or invalid. In Emperor vs. Benoarilal (38) the Privy Council observed that the subjective satisfaction of the Executive Authority is subject to two conditions, namely, that the said authority noted bonafide and in accordance with the statutory powers. 71. So far as the first ground is concerned that the authority passing the order of detention could act only in accordance with the mandatory provisions of MISA, there can hardly be any dispute. On account of the recent amendments made in MISA by the introduction of Sec. 16-A, as amended on October 17, 1975, the provisions of sections 8 to 12 of MISA have been put out of office, in cases where a declaration is made by the competent authority under clause (2) or clause (3) of section 16-A. Thus the only mandatory requirement which now needs to be fulfilled in respect of an order of detention under MISA are,— (i) That a valid order of detention is made by competent authority under section 3(1) of the Act, and (ii) That the Detaining Authority has made a declaration in terms of clause (2) or (3) of Sec. 16A. It is also open to this Court to consider the question of vires of the provisions of MISA and we have already considered the challenge in this respect and have held that the amended provisions of MISA are valid. 72. It is also open to this Court to consider the question of vires of the provisions of MISA and we have already considered the challenge in this respect and have held that the amended provisions of MISA are valid. 72. As regards the other two grounds, namely, the excess or absence of authority and the mala fides of the Detaining Authority, it may be observed that after the provisions of section 16 A (as amended) have been enacted by Parliament, though the aforesaid grounds may be theoretically available to the petitioner, yet their practical content would, in our opinion, be limited to any invalidity appearing at the face of the order of detention passed under section 3(i)(a) of MISA. If the order of detention passed under section 3(i)(a) ex facie shows that the said order has not been passed for any of the purposes mentioned in section 3(i)(a) of MISA, then a possible challenge to the validity of the detention order on the ground that the said order was passed for purposes other than those mentioned in section 3(i)(a) of MISA could be made. It is within these narrow limits that an order of detention can be challenged in this Court during the period Section 16-A of MISA continues to remain in force namely, until the emergency subsists. As the grounds of detention are not to be furnished to the detenu and the officers of the State have been prohibited from disclosing the same and as the said grounds and the material or information in respect thereof are to be treated as confidential and deemed to be matters of State under clause (9), of section 16A, the question as to whether the detention order was passed in bad faith or for extraneous grounds or for grounds not proximate to the subject matter of the Act, cannot be looked into. In A K. Gopalan vs. State of Madras (10) Kama Chief Justice observed : — "By that section the Court is prevented (except for the purpose of punishment for such disclo- sure) from being informed either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under Sec. 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public Officer to disclose the substance of those grounds or from the production of the proceedings or report of the Advisory Board which may be declared confidential. It is clear that if the provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not, I do not mean whether the grounds are sufficient or not. It even prevents the court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or clause or clauses of cases mentioned in S. 12(1) (a) of (b)." 73. Untwalia, J , as he then was, made the following observations in this respect in Arbind Prasad Sinha and others vs. The State of Bihar and others (39):— "......a charge of bad faith being a very serious charge cannot be decided in vacuum. It has to be decided with reference to the merits of the orders by taking into consideration the grounds and facts which form its basis. Mere proof of animo- sity, anger or grudge of the detaining authority against the person detained will not necessarily lead to the conclusion that the power has been exercised in bad faith. Suspicion there will be, but mere suspicion is not enough. Even if the facts constituting the inimical attitude of the de- taining authority are proved, can it be said that it necessarily leads to the conclusion that the power has been exercised male fide because of that enmi- ty unless the order itself is examined on merits. If after examination of the order and the facts forming its basis, it is found that the order is pre- verse, unreasonable and unjustified, a finding which by itself would not have entitled the court to declare the order bad would, however, enable it to do so if coupled with the finding of animus of the detaining authority. Unless the two are out in juxtaposition neither by itself in a case of this kind is sufficient to enable the court to declare the order bad. The difficulty then arises whether the courts can ask for, and enter into, the merits of the grounds and facts forming the basis of the impugned order of detention. Unless the two are out in juxtaposition neither by itself in a case of this kind is sufficient to enable the court to declare the order bad. The difficulty then arises whether the courts can ask for, and enter into, the merits of the grounds and facts forming the basis of the impugned order of detention. (4) The rules do not provide for any comm- unication of the grounds of detention nor for supp- lying the facts which constitute the basis of the subjective satisfaction of the detaining authority. ..............." It was further observed in the aforesaid case:— "If a person cannot ask the Court to declare the law made in violation of those rights ultra vires, he also cannot ask indirectly for their enforcement by seeking the aid of the Court to compel the executive to do what they are not bound to be under the law, merely because allegations of bad faith have been made. If those allegations can be substantiated without enforce- ment of the rights like the ones engrafted in Art. 22 and if in a given case, it is possible to hold that the impugned order has been passed not in genu-. in exercise of the power conferred on the execu- tive but out of ulterior considerations in bad faith, the courts will have no hesitation in knocking down the order. But, as pointed out above, from the practical point of view, in a large number of cases, if not in all, a Judge will feel helpless, with- out examining the facts and grounds of deten- tion. to cross the region of suspicion, however, strong it may be, and to come to a positive find- ing, as he has to, before knocking down the order on the grounds of mala fides, that it has been made on such account and not in genuine exercise of the power." 74. to cross the region of suspicion, however, strong it may be, and to come to a positive find- ing, as he has to, before knocking down the order on the grounds of mala fides, that it has been made on such account and not in genuine exercise of the power." 74. We therefore hold :— (1) That the habeas corpus petitions filed under Art. 226 of the Constitution cannot be thrown out at the threshold on the ground of lack of locus standi in the petitioners or the absence of jurisdiction of this Court but they can be heard and disposed of by this Court within the narrow limits indicated below: (2) that the Constitution (38th Amendment) Act, 1975 is valid in so far as it has amended the provisions of Articles 123, 352 and 359 of the Constitution, (3) that the Constitution (39th Amendment) Act, 1975 is valid in so far as it has included MISA in the 9th Schedule appended to the Constitution : (4) that the declaration of emergency by the President under Art. 352 (1) of the Constitution and the continuance of emergency are non-justiceable matters and cannot be questioned before this Court; (5) that the amendments made in MISA by Act No. 39 of 1975 and Ordinance XVI of 1975, are valid; (6) that the power of judicial review of this Court under Article 226 of the Constitution in matters of detention under MISA shall be limited to the following questions, namely : — (i) Whether the mandatory provisions of MISA have been complied with, i.e. (a) that an order of detention has been passed under section 3 (i) of MISA by a competent authority, (b) that a declaration in terms of clause (2) or (3) of section 16-A has been passed by the detaining authority, (ii) that the order of detention is mala fide in law. The scope of enquiry in this respect shall be limited as to whether the order of detention on the face of it is not made for any of the purposes mentioned in section 3 (i) of MISA, (iii) that MISA or any provisions thereof are ultra vires or void. However, in the cases before us, we have already considered the challenge made to the invalidity of the various provisions of MISA and have held that the provisions thereof as amended are valid. 75. However, in the cases before us, we have already considered the challenge made to the invalidity of the various provisions of MISA and have held that the provisions thereof as amended are valid. 75. The preliminary objections, therefore, are decided as indicated above.