Mohd. Yaqub v. State of Jammu & Kashmir (AIR 1968 SC 765)

This case explains how Article 359(1) works in an Emergency. The question was: can we attack an Emergency order by using the very rights that the order suspends? The Supreme Court said no. During the valid suspension, the grounds of detention under Article 22(5) need not be given. The detention under r. 30(1)(b) of the Defence of India Rules was held valid. Article 166 procedure did not apply to Jammu & Kashmir.

1. Is an Article 359(1) order a “law” under Article 13(2) and can it be tested against Articles 14, 21, 22 that it suspends?
2. Must the State still supply grounds of detention under Article 22(5) after Article 22 is suspended?
3. Did the new detention order follow Article 166 procedure, and does Article 166 apply in J&K?
4. Was the arrest under r. 30(1)(b) of the Defence of India Rules legal?

• Habeas Corpus: Court checks if detention is lawful, even in Emergency.
• Non-Arbitrariness: Emergency powers aim at security; they cannot be used at whim.
• Harmonious Construction: Articles 359 and 13(2) read together—suspension cannot be attacked using the same suspended rights.
• Emergency Power: The President’s order under Article 359 is wide but not unlimited; it controls court access for specified rights.

The Supreme Court held that an Article 359(1) order cannot be tested by using the same rights it suspends. Otherwise, Article 359 would be useless. As Article 22 stood validly suspended, the State was not required to give grounds under Article 22(5) during the Emergency. Article 166 did not apply to J&K, so the fresh detention order was treated as valid under local rules. The detention under r. 30(1)(b) was upheld.

Note: The Court reaffirmed that Emergency powers are broad but not limitless. They aim to protect security, not to allow arbitrariness.

• No self-challenge: Rights suspended by Article 359(1) cannot be used to challenge that suspension.
• Article 22(5) duty paused: No need to supply detention grounds while Article 22 is validly suspended.
• J&K exception: Article 166 procedures did not apply; local constitutional process governed.

The case sets clear Emergency law basics: how far the State can go, and what courts can review. It preserves security needs while warning that such power is not arbitrary.

• Article 359(1) blocks court enforcement of named rights for the period and area specified.
• Article 22(5) grounds are not required during a valid suspension of Article 22.
• Article 166 did not apply to J&K; detention was valid under local procedure.

Mnemonic: “Suspend—Stop—Still-Lawful.”

1. Suspend access to courts for named rights (Art. 359(1)).
2. Stop using those rights to attack the suspension.
3. Still-Lawful detention if rules of Emergency and local law are met.

Article 359(1)

Lets the President suspend the right to move courts for specified fundamental rights during Emergency.

Habeas Corpus

A writ to test if a person’s detention is lawful.

Defence of India Rules

War-time rules giving powers like preventive detention for state security.