ISSUE:
Does a presidential order suspending rights during an emergency prevent challenging the factual basis of a detention order?
Whether the service of an order of detention to the appellant is valid when already a person is in custody?
Whether the plea of mala fide raised by the appellant will be acceptable?
RULE:
Even during a state of emergency, a person has the right to challenge the factual basis of a detention order issued under the Preventive Detention Act. This right is not suspended by a presidential order issued under Article 359(1) of the Indian Constitution.
The right to personal liberty is fundamental and distinct from the remedy available to enforce it. Suspending the right to enforce the right to liberty (Article 21) does not extinguish the right to challenge the legality of the detention itself.
There is a difference between suspension of fundamental rights and suspension of enforceability. In the case of the right to move to the Court for enforcement, which is suspended, the rights still remain alive theoretically.
A person cannot be served an order of detention when he is already in jail due to pending criminal proceedings against him in an alleged offense.