Makhan Singh v State of Punjab
Rule established
An order under Article 359 bars only reliance on the rights specified in it. A detenu remains free to raise grounds outside those rights, including that the detention is mala fide, that the authority was not empowered, that the detention falls outside the four corners of the statute, or that the statute is invalid for reasons unconnected with the suspended articles.
Facts
- A Proclamation of Emergency was in operation, having been issued at the time of the conflict on the northern frontier.
- The Defence of India legislation and the rules made under it conferred powers of preventive detention.
- The President made an order under Art.359 declaring that the right to move any court for the enforcement of the rights conferred by Arts.14, 21 and 22 should remain suspended for the period of the Emergency, in respect of persons detained under that legislation.
- The petitioners were detained under those provisions and applied for habeas corpus.
- The State contended that the presidential order barred the petitions altogether, since any complaint about a detention must in substance rest on Art.21 or Art.22.
- The petitioners contended that they were not seeking to enforce the suspended rights but were asserting that the detentions were outside the statute or otherwise unlawful.
Issue
- How far does an order under Art.359 exclude a challenge to a detention, and what grounds, if any, remain available to a detenu?
Held
- The bar is limited to the rights specified in the order. Article 359 does not suspend the right itself but only the right to move a court for its enforcement, and it operates only in respect of the rights the order names. The Court therefore held that a detenu remains entitled to contend, notwithstanding the order, that the detention is mala fide; that the order was passed by an authority not empowered to pass it; that the detention does not satisfy the requirements of the statute and so falls outside its four corners; that the statute or rule is ultra vires on a ground unconnected with the suspended articles, for example want of legislative competence; and that there has been non-compliance with a mandatory provision of the statute. What the detenu may not do is complain that the detention infringes the very rights whose enforcement has been suspended.
Ratio Decidendi
The words of Art.359 are directed at the enforcement of specified fundamental rights and not at the jurisdiction of the courts generally. A detention which is outside the statute is not merely a violation of a fundamental right; it is action without legal authority at all, and a plea to that effect asks the court to apply the ordinary law rather than to enforce a suspended right. Reading the order more widely would convert a limited suspension of remedies into a general immunity for executive action, which the article does not confer.
How to use it in an exam
- The correct and enduring statement of the reach of Art.359. Learn the list of surviving grounds, which is what the case is asked for: mala fides, want of power in the authority, detention outside the four corners of the statute, invalidity of the statute on unrelated grounds, and non-compliance with mandatory provisions.
- Note the crucial conceptual point: Art.359 suspends the right to move a court, not the right itself. This distinguishes it from Art.358, which suspends the operation of Art.19 as against State power.
- Its greatest value in an answer is as the measure of how far ADM Jabalpur v Shivkant Shukla 1976 departed from settled law, since Makhan Singh had already held that a detention outside the statute could be challenged. The majority in ADM Jabalpur has since been expressly overruled and H R Khanna J's dissent accepted as correct.
- Note the position after the 44th Amendment, 1978: an order under Art.359 can no longer touch Arts.20 and 21, and Art.358 now applies only to a Proclamation on the ground of war or external aggression, so the result in ADM Jabalpur could not recur.
- In a problem involving detention during an Emergency, work through the Makhan Singh grounds first, because they are available irrespective of the terms of any Art.359 order.
Source
Source: AIR 1964 SC 381; (1964) 4 SCR 797; Bench of seven Judges; the correct and enduring statement of the reach of an Art.359 order; citation and bench checked against Indian Kanoon and reported sources, audit of 12 August 2026
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.