Ram Singh and Ors Vs The State of Delhi and Anr-06/04/1951

SUPREME COURT OF INDIA JUDGMENTS

Preventive detention—Grounds—Communication of—Order of detention passed on the ground of maintaining peace and public order to prevent the detenu from making speeches prejudicial to maintenance of public order—Communication of particulars of speeches or substance thereof as attributed to the detenu, is not necessary—The Court cannot decide whether the speech or speeches in question constituted a prejudicial act or not.

SUPREME COURT OF INDIA

Ram Singh and others

Versus

The State of Delhi and another
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The National Security Act, 1980

Statement of Objects and Reasons-

In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary that the law and order situation in the country is tackled in a most determined and effective way. The anti-social and anti-national elements including secessionist, communal and pro-caste elements and also other elements who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom.

Considering the complexity and nature of the problems, particularly in respect of defence, security, public order and services essential to the community, it is the considered view of the Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers of preventive detention. The National Security Ordinance, 1980, was, therefore, promulgated by the President on September 22,1980.

Subject to a modification, the Bill seeks to replace the aforesaid Ordinance. The modification relates to the composition of Advisory Boards, and is for providing that the Chairman of an Advisory Board shall be a person who is, or has been, a Judge of a High Court and the other members of the Advisory Board may be persons who are, or have been, or are qualified to be appointed as, Judges of a High Court.


(65 of 1980)

An Act to provide for preventive detention in certain cases and for matters connected therewith

Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows:-

1. Short title and extent .

(1) This Act may be called The National Security Act , 1980.
(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Definitions .

In this Act, unless the context otherwise requires,

(a) appropriate Government means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government;

(b) detention order means an order made under section 3;

(c) foreigner has the same meaning as in the Foreigners Act, 1946 (31 of 1946);

(d) person includes a foreigner;

(e) State Government, in relation to a Union territory, means the administrator thereof.

3. Power to make orders detaining certain persons

(1) The Central Government or the State Government may,

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India; or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied

Explanation-For the purposes of this sub-section, acting in any manner prejudicial to the maintenance of supplies and services essential to the community does not include acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation. to sub-section (1) of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

(3) If, having Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words twelve days, the words fifteen days shall be substituted.

(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

4. Execution of detention orders .

A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).

5. Power to regulate place and conditions of detention .Every person in respect of whom a detention order has been made shall be liable

(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and

(b) to be removed from one place of detention to another place of detention, whether within the same State or in another State, by order of the appropriate Government:

Provided that no order shall be made by a State Government under clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.

5-A. Grounds of detention severable

Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.

6. Detention orders not to be invalid or inoperative on certain grounds

No detention order shall be invalid or inoperative merely by reason

(a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or officer making the order, or

(b) that the place of detention of such person is outside the said limits.

7. Powers in relation to absconding persons.

(1) If the Central Government or the State Government or an officer mentioned in sub-section (3) of section 3, as the case may be, has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government or officer may

(a) make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides;

(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order.

(2) Upon the making of a report against any person under clause (a) of sub-section (1), the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of such person and his property as if the detention order made against him were a warrant issued by the Magistrate.

(3) If any person fails to comply with an order issued under clause (b) of sub-section (1), he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under sub-section (3) shall be cognizable.

8. Grounds of order of detention to be disclosed to persons affected by the order

(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

9. Constitution of Advisory Boards .

(1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.

(2) Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government.

(3) The appropriate Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned.

10. Reference to Advisory Boards

Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section.

11. Procedure of Advisory Boards

(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting the part of the report in which the opinion of the Advisory Board is specified, shall be confidential.

12. Action upon the report of the Advisory Board

(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.

13. Maximum period of detention

The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention:

Provided that nothing contained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.

14. Revocation of detention orders

(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,
(a) notwithstanding that the order has been made by an officer mentioned in sub-section

(3) of section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984 bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person:
Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.]

14-A. Circumstances in which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Boards

(1) Notwithstanding anything contained in the foregoing provisions of this Act, or in any judgment, decree or order of any Court or other authority, any person in respect of whom an order of detention has been made under this Act at any time before the [8th day of June, 1989] may be detained without obtaining the opinion of the Advisory Board for a period longer than three months, but not exceeding six months, from the date of his detention where such person had been detained with a view to preventing him, in any disturbed area,

(i) from interfering with the efforts of Government in coping with the terrorist and disruptive activities; and

(ii) from acting in any manner prejudicial to

(a) the defence of India; or

(b) the security of India; or

(c) the security of the State; or

(d) the maintenance of public order; or

(e) the maintenance of supplies and services essential to the community.

Explanation 1

The provisions of the Explanation. to sub-section (2) of section 3 shall apply for the purposes of this sub-section as they apply for the purposes of that sub-section.

Explanation 2 In this sub-section, disturbed area means any area which is for the time being declared by notification under section 3 of the Punjab Disturbed Areas Act, 1983 (32 of 1983), or under section 3 of the Chandigarh Disturbed Areas Act, 1983 (33 of 1983), to be a disturbed area.

Explanation 3 In this sub-section, terrorist and disruptive activities means terrorist acts and disruptive activities within the meaning of the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (Ord. 2 of 1987).

(2) In the case of any person to whom sub-section (1) applies, sections 3, 8 and 10 to 14 shall have effect subject to the following modifications, namely:
(a) in section 3,

(i) in sub-section (4), in the proviso,

(A) for the words ten days, the words fifteen days shall be substituted;

(B) for the words fifteen days, the words twenty days shall be substituted;

(ii) in sub-section (5), for the words seven days, the words fifteen days shall be substituted;

(b) in section 8, in sub-section (1), for the words ten days, the words fifteen days shall be substituted;

(c) in section 10, for the words shall, within three weeks, the words shall, within four months and two weeks shall be substituted;

(d) in section 11,

(i) in sub-section (1), for the words seven weeks, the words five months and three weeks shall be substituted;

(ii) in sub-section (2), for the words detention of the person concerned, the words continued detention of the person concerned shall be substituted;

(e) in section 12, for the words for the detention, at both the places where they occur, the words for the continued detention shall be substituted;

(f) in section 13, for the words twelve months, the words two years shall be substituted;

(g) in section 14, in the proviso to sub-section (2), for the words twelve months, the words two years shall be substituted.]

15. Temporary release of persons detained 

(1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.
(2) In directing the release of any person under sub-section (1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.
(3) Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be.
(4) If any person fails, without sufficient cause, to surrender himself in the manner specified in sub-section (3), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(5) If any person released under sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.

16. Protection of action taken in good faith.

No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act.

17. Act not to have effect with respect to detentions under State laws

(1) Nothing in this Act shall apply or have any effect with respect to orders of detention, made under any State law, which are in force immediately before the commencement of the National Security Ordinance, 1980 (Ord. 11 of 1980), and accordingly every person in respect of whom an order of detention made under any State law is in force immediately before such commencement, shall be governed with respect to such detention by the provisions of such State law or where the State law under which such order of detention is made is an Ordinance (hereinafter referred to as the State Ordinance) promulgated by the Governor of the State and the State Ordinance has been replaced

(i) before such commencement, by an enactment passed by the Legislature of that State, by such enactment; or

(ii) after such commencement, by an enactment which is passed by the Legislature of that State and the application of which is confined to orders of detention made before such commencement under the State Ordinance, by such enactment, as if this Act had not been enacted.

(3) Nothing in this section shall be deemed to bar the making, under section 3, of a detention order against any person referred to in sub-section (1) after the detention order in force in respect of him as aforesaid immediately before the commencement of the National Security Ordinance, 1980 (Ord. 11 of 1980), ceases to have effect for any reason whatsoever.
Explanation. For the purposes of this section, State law means any law providing for preventive detention on all or any of the grounds on which an order of detention may be made under sub-section (2) of section 3 and in force in any State immediately before the commencement of the said Ordinance.

18. Repeal and saving .

(1) The National Security Ordinance, 1980 (Ord. 11 of 1980), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act, as if this Act had come into force on the 23rd day of September, 1980, and, in particular, any reference made under section 10 of the said Ordinance and pending before any Advisory Board immediately before the date on which this Act receives the assent of the President may continue to be dealt with by that Board after that date as if such Board had been constituted under section 9 of this Act.


 

As soon as may be – Means

Supreme Court in Ujagar Singh Vs. The State of The Punjab, while construing the words “as soon as may be” in Section 7 of the Preventive Detention Act, 4 of 1950 said that these words mean reasonable dispatch and what is reasonable dispatch depends on the facts of each case, it being not possible to set down an arbitrary time limit. Recently in a number of decisions this Court has taken a similar view.


SAMARESH CHANDRA BOSE AND OTHERS Vs. THE DISTRICT MAGISTRATE, BURDWAN AND OTHERS

GAJANAN VISHWANATH KETKAR Vs. THE STATE- 22/07/1965

(1967) AIR(Bombay) 96 : (1966) 68 BomLR 321 : (1967) CriLJ 427 : (1966) ILR(Bombay) 839

BOMBAY HIGH COURT

DIVISION BENCH

( Before : Palekar, J; Naik, J )

GAJANAN VISHWANATH KETKAR — Appellant

Vs.

THE STATE — Respondent

Criminal Application No. 616 of 1965

Decided on : 22-07-1965

Defence of India Rules, 1962 – Rule 30(1)

Cases Referred

Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, AIR 1957 SC 164 : (1957) CriLJ 316 : (1956) 1 SCR 948
Bhim Sen For R.S. Malik Mathra Das and Others Vs. The State of Punjab, AIR 1951 SC 481 : (1952) CriLJ 75 : (1952) 1 SCR 18
A.K. Gopalan Vs. The State of Madras, AIR 1950 SC 27 : (1950) CriLJ 1383 : (1950) 1 SCR 88
The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, AIR 1960 SC 633 : (1960) CriLJ 1002 : (1960) 2 SCR 821
Bal Keshav Thakrey Vs. Commissioner of Police, Bombay and State of Bombay, AIR 1956 Bom 490 : (1956) 58 BOMLR 473 : (1956) CriLJ 875 : (1956) ILR (Bom) 704
Counsel for Appearing Parties

M.D. Pathak, for the Appellant; R.B. Kotwal, A.G.P., for the Respondent

JUDGMENT

Naik, J.

(1) This ia an application by Gajanan Vishwanath ketkar u/s 491, Cr. P. C. and Art, 226 of the constitution of India for a Writ of habeas corpus challenging the order of detention passed against him on 24-11-64. The petitioner has alleged that his detention is actuated by malice and that it cannot be justified for the reasons for which it purports to have been made. The averments contained in the petition may be outlined as follows. The petitioner has given his antecedents in the first ten paragraphs of the petition. He is an old man of 67 years . He is a double graduate of the Bombay University. He is the grandson of the late Lokmanya Bal Gangadhar Tilak. He has been in public life for the past forty-five years. He was convicted during the Salt Satyagrah movement when he participated in what is historically known as Dandi march in 1930. In 1935 he was the President of the Maharashtra Provincial Congress Committee. He was founder Secretary and President of Gita Dharma Mandal. He was the Vice-President of the Anath Hindu Mahila Ashram. He was the treasurer of the Raigarh Memorial Committee, Tilak Janma Shatabdi Fund, Savarkar Satkar Nidhi and also of Hindu Sanghatan Nidhi. He was also the founder of the Poona School and Home for Hindu Anant Ashram and one of the founder members of Gita Jayanti movement. He had served in the Hindu Maha Sabha organization in various capacities. He was the Editor of Kesari for 5 years till 1950 and a Trustee of the Kesari Maratha Trust. He was also the editor of sister english paper ‘Maratha’ till 1955. He was also the Editor of ‘Tarun Bharat’ a Marathi daily of Poona, from 1957 to 1964. The petitioner says that he retired from active political life in 1957 and since then has been devoting himself to writing articles in newspapers and periodicals. The petitioner relies upon these antecedents to suggest that it is unlikely that he would take part in prejudicial activities.

(2) The petitioner has then stated that since 1957 he was championing the release of Gopal Godse and Vishnu Karkare, the life convicts in Mahatma Gandhi murder case and for that purpose he wrote articles in newspapers. He was advocating in these articles that the usual remission of sentence which is awarded to other prisoners, should not be denied to Godse and Karkare. We were told that had the remission due to the prisoners under the Jail rules been given to Godse and Karkare, they would have been released by about 10-12-1962. It appears that Godse and Karkare had made petitions to the Supreme Court for releasing them from jail on the grounds that they had served their sentences. Pending these petitions, on 13-10-64, orders were passed by the Central Government for releasing Godse and Karkare. Both Godse and Karkare came to Poona about two days prior to the date on which the important event which led to petitioner’s detention occurred i.e., 12-11-1964. Friends and admirers of Godse and Karkare by performing what has been called Satyavinayak Mahapooja. One M. G. Ghaisas, who is petitioner in Criminal Application No. 675 of 1965, issued printed invitation cadres under his signature, a copy of which has been placed before us at Ex. A. It runs thus;

“Shri Gopalrao Godse, brother of the patriot late Nathuram Godse, Shri Vishnupant Karkare and Shri Madanlal Pahawa have been released from jail. Out of joy for the said release, we, a circle of friends, are going to perform the mahapuja of shri Satyavinayak. We propose to call the aforesaid three persons for offering congratulations to them. You are, therefore, requested to remain present along with your friends circle.”

The petitioner has suggested that he received an invitation for attending this mahapuja, because he was one of those who championed the cause of release of Godse and Karkare. The time mentioned in the invitation care i.e., 5-30 to 7-30 p.m. and the place where the pooja was to be performed is Udyan Karyalaya 619 Shaniwar Peth, Poona 2. The petitioner has alleged that he went to the place at about 7 or 7-30 p.m. by which time Pooja was over. about 125 of 150 persons were present on this occasion. This assembly constituted itself is a meeting which was addressed, in the first instance, by Godse and Karkare followed by the petitioner, who had been proposed to be the Chairman. The contents of the speech made by the petitioner is a matter of dispute in these proceedings. Two rival versions have been placed before us about the contents of the petitioner’s speech. According to the petitionr, no speaker eulogized the murder of Mahatma Gandhi.

“The petitioner expressed satisfaction that at long last Gopal Godse and Vishnu Karkare were now free. He wished them a happy life. He also expressed that it was his misfortune that he could not dissuade Nathuram Godse from the idea of murdering of Gandhiji. He gave advance information of Godse’s idea to Shri B. G. Kher by a registered letter through late Shri Balukaka Kanitkar, a veteran Congress leather of Poona. The petitioner further said that by release of Godse and Karkare a historical chapter of Gandhi murder case has been completed. Gopal Godse and Karkare also narrated their experiences of prison life Shri M. G. Ghaisas thanked those present for attending the said function.”

According to the petitioner, this is all that happened on that day. It is stated in the petition that reports of the proceedings appeared in the “Indian Express’ newspaper on 13-11-64. On subsequent days, reports appeared in other newspapers as well. It is an admitted fact that on 15-11-64 another ceremony known as Shradha ceremony was held at the same place viz., Udyan Karyalaya. this ceremony was organised by Sindhutai Godse, the sister-in-law of Nathuram Godse. The petitioner did not attend this function and had nothing to do with the same. Since the ‘incident, which took place on 15-11-64, in respect of the Shradha ceremony has been relied upon by the District Magistrate, respondent No. 1, and also by the peitioner, we may set out certain facts in regard to the same on which there is not mush dispute It appears that the shradha ceremony was being held annually. Permission from the police to install a loudspeaker was secured on this occasion on 15-11-64 and three persons spoke on this day. They are N. G. Abhyankar, Advocate (who is petitioner in Cr. Appln. No. 614 of 1965). P.V. Davre, Advocate (who is petitioner in Cr. Appln. No. 615 of 1965) and V. P. Bapat (who is petitioner in Cr. Appln. No. 870 of 1965).

(3) Questions were asked in the State Legislative Assembly as also in the Parliament as to why action was not taken against those who participated in the said functions of Pooja and shradh ceremony. Reference has been made to this in paragraph 16 of the petition. It is further stated in the same paragraph that some persons demanded that action should be taken against the participants of the functions. The petitioner’s case is that as a result of the commotion created by the newspaper reports and the debate in the Assembly and the Parliament, a storm of controversy was raised as a result of which he was relieved from the post of editorship of Tarun Bharat on 19-11-64. It appears that the petitioner left Poona on 23-11-64 and reached Madras on 24-11-64. The District Magistrate, Poona passed an order on 24-11-64 for the detention of the petitioner. The same day, the District Magistrate passed similar orders against some other persons,. who have all preferred petitions in this Court. The Order runs thus:

“Whereas I, M. A. Deshmukh, District Magistrate, Poona, am satisfied with reference to the person known as shri Gajanan Vishwanath Ketkar of Poona that with a view to preventing him from acting ina manner prejudicial to the Defence of India public safety, the maintenance of public order it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred upon me by rule 30 (a) (b) of the Defence of India Rules, 1962 read with the Government Notification in Home Department (Special) No S. B. III/DOR 1162-I dated the 9th November 1962, I do hereby direct that the said Shri Gajanan Vishwanath Ketkar be detained.”

The petitioner has alleged that on 25-11-64, when he came to know about the order of detention,he went to the Police Commissioner, Madras, and surrendered himself. He was then being taken back to Poona and while the train was at Dhond station the order of detention was served upon him on 28-11-64. the order of detention came to be confirmed by the State Government on 1-2-1965. Review was made as a result of which the order was again confirmed on 13-5-65. It is against this order of detention passed by the District Magistrate on 24-11-64, that the petitioner has filed the present petition.

(4) The petitioner after setting out his own version about the contents of the speech which he delivered on 12-11-64, contends that this did not amount to eulogizing Nathuram Godse, the assassin of Mahatma Gandhi. He has alleged that it was as a result of the agitation that was carried out in the press and also the questions asked in the State Assembly and the Parliament that the Government of Maharashtra and the Union Government were compelled to take action. According to him, the two Governments felt themselves embarrassed, because the petitioner had disclosed that he had informed B. g. Kher, the then Chief Minister of Bombay, about the plan to murder Mahatma Gandhi and yet no action was taken to prevent the commission of the offence. According to the petitioner, the District Magistrate has not applied his mind and has not reached satisfaction, which is the pre-requisite for passing the order of detention. The petitioner has also alleged that the order of detention is mala fide and in this respect has relied upon two circumstances viz., that the Government of India has announced in the month of March 1965, the appointment of one-man Commission comprising Shri G. S. Pathak to investigate into the correctness or otherwise of the statement attributed to the petitioner in the course of the speech on 12-11-64, and that this is just an eyewash, the object being to keep the petitioner in detention for an unlimited length of time. It is also suggested that the District Magistrate took recourse to the action of preventive detention on instructions from the Government, who felt embarrassed by the disclosure made by him.

(5) The District Magistrate, Poona who is respondent No. 1 to this petition, has put in his affidavit and countered the allegations contained in the petition. He has set out his version as to the contents of the speech delivered by the petitioner, Ketkar, on 12-11-64 at paragraph (6) of the affidavit. The relevant portion runs thus:

” . . . . . . .It is denied that the said function was a private function. From the information obtained from the record, I say that this was a public function organized by the friends and the admirers of Nathuram Godse to eulogize Nathuram Godse, for the assassination of Mahatma Gandhi. At this function, which was held in Udyan Mangal Karvalava. Poona, “a Satyanarayan Mahapooja” was performed. The record before me shows that this function was attended by about 125 to 150 persons who were all admirers of nathuram Godse. At this function, speeches were made and the petitioner was the principal speaker on this occasion.”

The District Magistrate has denied that the petitioner was invited on this occasion, because he had campaigned for the release of Godse and Karkare. According to the District Magistrate, the petitioner was invited because he belonged to the group of persons who, believed that Nathuram Godse had done a service to India by assassinating Mahatma Gandhi. The District Magistrate stated that all those who had gathered at this function were persons who shared this view which was reflected in the speeches delivered at this function. Again, at paragraph (8), the District Magistrate has asserted;

” . . . . . . . . . . . .I say that at this function speeches were made publicly eulogizing Nathuram Godse for the assassination of Mahatma Gandhi.”

The District Magistrate had denied that the petitioner had in the course of that speech expressed that it was his misfortune that he could not dissuade Nathuram Godse from carrying out the idea of murdering Mahatma Gnadhi. The District Magistrate has proceeded to say:

“On the contrary, the speech which the petitioner delivered sufficiently indicated that he had prior knowledge of the conspiracy which had been hatched to murder the ‘Father of the Nation’ and that the petitioner was among those who admired Nathuram Godse for having put an end to the life of Mahatma Gandhi. I have no knowledge as regards the statement that the petitioner has given advance information of Godse’s plan to late shri B. G. Kher through late Shri Balukaka Kanetkar by a registered letter”.

At paragraph (9), the District Magistrate has asserted that the two functions viz., one held on 12-11-64 and the other on 15-11-64, were linked together and were arranged and attended by the friends and admirers of Nathuram Godse. He has suggested that it was only an accident that the petitioner was not present on the function held on 15-11-64. At paragraph (11), the District Magistrate has asserted that the action taken by him was the result of the application of his own mind to the material placed before him and he was not influenced by any outside agency. At paragraph (18), the District Magistrate had stated that it was not true that the detention of the petitioner was made with an intention to curb his activities but that he issued the order of detention after applying his own mind.

“To the material regarding the activities of the petitioner placed before me (District Magistrate) and after satisfying myself that it was necessary to detain the petitioner with a view to preventing him for acting in a manner prejudicial to the Defence of India, the Public safety and the maintenance of public order”.At paragraph (34) in reply to ground No. 14 mentioned in paragraph (44) of the petition the District Magistrate has stated:

“. . .. . . .. .I had personally applied my own mind to the report of a senior Police officer and my order was the result of the application of my own mind.”

(6) S. P. Agashe, Under Secretary to the Government of Maharashtra, Home Department and General Administration Department, has put in an affidavit on behalf of the State of Maharashtra, which has been added as respondent No. 2 to this petition. Agashe has denied that there was any embarrassment caused to the Government of Maharashtra on account of the publicity given to the proceedings of the two functions and by the speech made by the petitioner. He has also denied that that was the reason why the petitioner came to be detained. He has also denied that any pressure was exerted on the Government of Maharashtra by certain persons within and without the State of Maharashtra for taking punitive action against those who are active members of the Hindu Mahasabha. He has also denied that the detention of the petitioner was the result of the centrally determined policy of the Government of Maharashtra.

(7) The Union of India, which has been added as respondent No. 3 to this petition, has not appeared nor has anyone put in affidavit on its behalf. The Superintendent, Naik Road Central Prison, who has been added as respondent No. 4, has not put in any affidavit in this case.

(8) Certain important and intriguing questions have arisen for consideration in this petition. Before addressing ourselves to these questions, it will be convenient to set out the rival arguments advanced before us. Mr. Pathak, for the petitioner, contended that the function that was arranged on 12-11-64 was a private function. Invitations were issued to the friends of godse and Karkare. The function was not open to the public and was restricted to the invitees. The object of the function was not to make speeches. The main object was to perform Satyanarayan or Satyavinayak Mahapooja, for expressing joy felt by the friends for the release of Godse and Karkare. Mr. Pathak contended that the very fact that the time for attending the function was mentioned as 5.30 to 7.30 p.m. shows that it was not expected that any speeches would be delivered on that occasion. He also pointed out that the petitioner, Ketkar, also came at a late stage. According to Mr. Pathak, the idea of the assembly being converted into a sort of meeting cropped up only after the appearance of the petitioner. Mr. Pathak contended that since the meeting was a private one and since no outsiders were invited to this meetings, there was no possibility of the District Magistrate receiving authentic report of the speeches delivered on this occasion and in particular the speech delivered by the petitioner. Mr. Pathak,. therefore, contended that the version that has been placed before the Court on behalf of the petitioner, is the only authentic version and it should be accepted as such. He argued that the only activity for which the petitioner has been ordered to be detained is the one relating to the part played by him on 12-11-64. He pointed out that the petitioner did not participate in the function held on 15-11-64. Had it been the intention of the petitioner to indulge into a sort of propaganda, he would never have missed the opportunity of addressing the gathering on 15-11-64. Mr. Pathak, therefore, contended that one incident viz., the impromptu speech delivered by the petitioner on 12-11-64, could not form the basis of satisfaction, which is the pre-requisite for passing the order of detention. He also argued that there was not proximate or direct c connection between the speech delivered by the petitioner and the defence of India, the public safety and the maintenance of public order being brought into jeopardy. He particularly emphasized that the speech could possibly have no effect on the defence of India and there would not be even a remote c connection between the speech delivered by the petitioner and the defence of India. Finally, he argued that it is not merely the district Magistrate of Poona who has passed the orders of detention, but that the District Magistrates of three more districts have passed the orders of detention, more or less, on the same day against different individuals who participated in the two functions. He contended that this shows that this was a centrally directed operation. According to him, the orders of detention must have passed by these District Magistrates on account of the directions issued by the State Government and the Central Government. For these reasons, the orders of detention, according to Mr. Pathak, were inspired by malice and, therefore, must be set aside. he emphasized that there was no possibility of any apprehension on the part of the District Magistrate, Poona, that the petitioner would repeat the performance attributed to him on the occasion of the function held on 12-11-64. If he wanted to repeat this activity he would have taken part in the Shradha ceremony held on 15-11-64.

(9) On the other hand, the learned Government Pleader, for the State, contended that the function held on 12-11-64 was a public function. although invitation cards were issued and sent to a few persons and in that sense, the function was restricted to the invitees, as many as 125 to 150 persons attended the function. The fact the publicity was given in the newspapers is also indicative of the function being attended by persons other than the invitees. He, therefore, argued that the District Magistrate had ample opportunity of getting an authentic report of what had transpired at this meeting. It may be mentioned that after the case was argued and was adjourned to another day with a view to enable the Government Pleader to sound the Government whether it was prepared to release the petitioner and other detenus by reason of the fact that considerable time has elapsed between the orders of detention and the date of hearing and that passions might have cooled down on account of the lapse of itme, the District Magistrate has put in an additional affidavit in which he has stated that he had obtained information from the persons who were present at the functions held on 12-11-64 and 15-11-64. The learned Government Pleader contended that the argument based on malice is without any foundation, since the District Magistrate has asserted that he passed the order after applying his own mind to the material placed before him. The State Government has also supported the stand taken by the District Magistrate on this point. The Government Pleader frankly stated that his case was that the District Magistrate took action against the petitioner and others on the material that was placed before him relating to the activities of the petitioner in c connection with the two functions held on 12-11-64 and 15-11-64 and the speeches delivered on these two occasions and their after-effects. He argued that even so the orders of detention are well founded.

(10) We will first deal with the question as to whether there was material before the District Magistrate on the basis of which he could be satisfied about the need of passing the order of detention against the petitioner. In that context, it is necessary to deal with the question whether the meeting held on 12-11-64, was a private meeting and if so, in what sense it was a private meeting. Now, the meeting was held not in the house of one of the friends and admirers but was held in a Karyalaya, which is a public place available for anyone on payment of rent. It is true that invitation cards were issued, presumably, to the circle of friends. It is noteworthy that M. G. Ghaisas, in his petition (No. 675 of 1965, which is also being heard along with this petition) has asserted that invitation cards were sent to about fifty persons. It is however an admitted fact that as many as 125 to 150 persons were present on this occasion. Again, the invitation cards issued were somewhat elastic, in that they asked the invitees to bring their friends with them. That appears to be the reason why although invitations were confirmed to fifty persons as many as 125 to 150 persons attended the function. It is not the case of the petitioner that this was a close door meeting, nor has it been stated anywhere that no member of the public other than those invited was present on this occasion. It is true that the District Magistrate has not stated in his affidavit that any police officer was present at this meeting. We will deal with this aspect of the matter presently. For the time being, we are restricting ourselves to the question whether the meeting was strictly a private meeting in the sense that members of the public had no access to the same. Considering all the circumstances of the case , we are inclined to the view that although the meet was not open to the public in general, still there was no prohibition for the members of the public coming in and attending the meeting. The very fact that as many as 125 to 150 persons attended the meeting shows that the gathering was sufficiently large. It was large enough for leakage of the information as to what transpired at the meeting. The question is important from more than one point of view. It it was strictly a private meeting then there was no likelihood of authentic information reaching the District Magistrate. It is necessary to note that two rival versions have been placed about the contents of the speech delivered by the petitioner on this occasion. Now, a person who has attended the meeting would alone be able to speak about the veracity of one or the other version. It would not be proper for the District Magistrate to act merely on a rumour or a gossip in regard to the speech or on a version of the speech placed before him by interested persons. The things or hear the speeches itself. It must see or hear them through some medium. If the medium is distorted, the view formed by it also would be distorted. It is equally necessary that the Court is satisfied that the detaining authority had an access to the place of the meeting and was in a position to get fair and authentic report. For instance, if the meeting has takes place in a place such as a house, the question of possibility of access would be of decisive importance. The house of an individual is a fortress for himself. If a conversation takes place between the husband and the wife and in the course of such conversation the husband strongly criticises the Government, there is very little possibility of the District Magistrate getting any authentic information in regard to that conversation. If a servant or a neighbour overhears such a conversation and makes an exaggerated report about the same to the District Magistrate, the question would arise whether the material on which the District Magistrate acted was proper material or tainted. To subscribe to the vireo that it would be open to the District Magistrate to act upon any late that has been carried to him would be to subscribe to the rule of Gestapo in place of the rule of law. At one stage, the learned Government Pleader contended that it was open to the District Magistrate to act upon any material that has been placed in his hand and he is not bound to disclose the source from which material was derived, not is he bound to disclose the nature of the material . The learned Government Pleader went so far as to say that the District Magistrate need not satisfy the Court that he was in a position to secure correct information. the instance cited above would expose the weakness of the extreme position taken up by the Government Pleader. it appears that this weakness was realised and in the second affidavit put in by the District Magistrate, it has been clearly mentioned that the District Magistrate got the report from certain person who attended the meeting. Mr. Pathak complained that the statement of the District Magistrate that he got the report from the persons who attended the meeting is very vague and it was necessary for the District Magistrate to disclose the names of the person who attended the meeting and conveyed information to him, so that it could be verified as to whether that person or persons were present on that occasion. It is, however, necessary to note that it is not open to us to consider the truth or otherwise of the version placed before us. All that is necessary for us to consider is whether there was authentic source from which the District Magistrate could gather information about the function and in particular the speech delivered by the petitioner. In view of the fact that the function was not strictly of a private character and also in view of the possibility of access to outsiders, it is not possible to hold that there was no authentic material on the basis of which the District Magistrate could pass the detention order.

(11) Mr. Pathak relied upon the decision of this Court in Bal Keshav Thakrey Vs. Commissioner of Police, Bombay and State of Bombay, . In that case, the Commissioner of Police in his affidavit had stated that the detenu, Keshav Sitaram Thakre, addressed a meeting held on 16-11-55 and made inflammatory remarks in the course of the speech. It transpired that Keshav Thakre was treated for cataract and was lying in bed on 16-11-55. It further transpired that there was another meeting held on 20-10-55 at Curry Road, Bombay, which was addressed by Keshav Thakre. The commissioner of Police tried to explain that reference in the order to the speech made by Keshav Thakre on 16-11-55 was a typographical error and that he meant to refer to the speech made by Keshav Thakre in the meeting held on 16-10-55. This argument was rejected by the Court. The learned Chief Jussive observed (at p. 492):

“In the absence of any material before us,. we must assume, indeed we must, that the material before the Commissioner of Police on which he made this order was the grounds furnished to the detenu and in these grounds what was mentioned was that at a meeting of 16-11-1955 the detenu made this inflammatory speech, and consequent upon that speech serious trouble broke out in Bombay on 21-11-1955. It is therefore, on these materials that the Commissioner of Police arrived at the satisfaction which the statute requires.

Can it possibly be said that that is a proper satisfaction which would justify the making of this order? When admittedly a most important material is placed before the detaining authority, which material now turns out to be a material which did not exist, then it cannot be said that the detaining authority applied its mind to all the relevant and proper circumstances which he must do before he makes the order”.

In the course of the same judgment, the learned Chief Justice pointed out that the Commissioner of Police in his affidavit had not told the Court as to whether the material placed before him showed that the detenu had made the speech on the 16th of November or 16th of October. Nor any light is thrown on the rather unfortunate error of the date 16th of November being substituted for the 16th of October.

The last observation does indicate that it would be open to the Court to insist that the Court must be satisfied whether there was material before the District Magistrate on which he could be satisfied. At the same time, it does not follow that the District Magistrate must place the entire material before us. Had that been the real position in law, then it would mean that the Court had power of weighing the two versions and coming to a finding as to which of the two is true. If the Court is satisfied that the material did not exist, then certainly the Court can say that the satisfaction is illusory. Once it turns out that the material existed, in the same that it was possible for the District Magistrate to gather information about the contents of the petitioner’s speech, then it is difficult to see how the Court can reject the version placed before the Court by the District Magistrate.

(12) Mr. Pathak referred to the article written by the petitioner as the editor of Kesari on 15-11-1949 under the title “National Victims of the sentence of hanging”. The petitioner was prosecuted for this article under S. 23 of the Indian Press (Emergency Powers) Act, 1931, on the ground that the material contained therein was objectionable material. He was convicted and ordered to give security in the sum of Rs. 3,000. The petitioner went in appeal and eventually, the matter was referred to a Full Bench. The Full Bench made a distinction between the sentence containing eulogy of the individual viz., Nathuram Godse, his devotion to duty, his simplicity of life etc. and the sentence eulogizing the act committed by him viz., the assassination of Mahatma Gandhi. The learned Chief Justice stated that admiration for the patriotism of the assassin is not the same thing as admiration for the act of assassination. The learned Chief Justice, at the same time, emphasized that while admiring the individual, it is necessary to point out that, that patriotism or love for the country was misguided. It was observed :

“. . . . . . . .It is true that in these two passages to which I have referred there is no clear indication that the ideal of devotion to the country and the discharge of his duty were both misguided and could not be justified.”

At the same time, the learned Chief Justice pointed out that offending passages could not be read in isolation and must be read in the the context, and reading them in the context the learned Chief Justice came to the conclusion that the article did not contain words which directly or indirectly expressed approval or admiration either of the murder of Mahatma Gandhi or of Godse and Apte as the persons who committed the offence. Vide Full Bench judgment in Cr. Appln. No. 136 of 1950, decided on 13-4-1950 (Punj). Mr. Pathak argued that it is unlikely that the petitioner would express any views now, in variance with the views expressed by him in 1949 in the aforesaid article. In this connection, he stressed that the petitioner had grown older and had better experience of life. He was not, therefore, expected to say something which amounted to admiration of the act of assassination committed by Nathuram Godse. It has already been pointed out that the invitation cards used the word ‘patriot’ with reference to Nathuram Godse. In the same way, at paragraph (13) of the petition, it is stated:

“. . . . .He (petitioner) also expressed that it was his misfortune that he could dissuade Nathuram Godse from the idea of murder of Gandhiji.”

The article in Kesari suggested that the petitioner got an inkling as to what was passing in Nathuram Godse’s mind from the speech he had delivered wherein he stated :

“Gandhiji wants to live for 125 years. I will see how he does so.”

The affidavit filed by the District Magistrate alleges that the petitioner openly state that he had advance information about the plan of murdering Mahatma Gandhi. The sentence in paragraph (13) of the petition does not indicate that the petitioner had gathered from Nathuram Godse’s speech that he might possibly indulge in any untoward act. The sentence cited above indicates that the petitioner had some more definite information about the same. In the context of the article written by the petitioner in Kesari and in the context of the sentence at paragraph (13) of the petition cited above, it is difficult to hold that the version set out by the District Magistrate is so utterly improbable as to be completely ruled out as untrue. In any case, as stated above, it is not the function of this Court to enter in to the truth or otherwise of the rival versions before it. It is sufficient if the Court is satisfied that the District Magistrate could get information from some persons who had access to the meeting. As pointed out above, there were as many as 125 to 150 person present on the occation. In all probability, the correspondent of the Indian Express newspaper was also present. The learned Government Pleader showed us a number of photographs, taken at the time when the petitioner was delivering the speech on this occasion. It was not just one snap photograph, but there were series of photographs, which appear to have been taken on that occasion. The photographs were also shown to Mr. Pathak. This shows that there were outsiders present and those outsiders were in a position to take photographs of the speaker viz., the petitioner, and some members who were sitting on the dias etc.

(13) The petitioner, in paragraph (13) of the petition, has stated that he mentioned at the meeting that he gave advance information of Nathuram Godse’s idea to Shri B. G. Kher by a registered letter through the late Shri Balukaka Kanetkar, a veteran Congress leader of Poona. The district Magistrate has denied that the petitioner had said anything of the kind. Mr. Pathak contended that the State Government ought to have come forward with a denial that the letter was sent by the late Balukaka Kanetkar to the late B. G. Kher, the then Chief Minister of Bombay, and since the State Government is not prepared to say so, the statement contained in paragraph (13) of the petition must be accepted as true. From this it follows, so Mr. Pathak argues, that far from acquiescing in the plan for assassinating Mahatma Gandhi, the petitioner took whatever step was possible for him to take for preventing the happening of that untoward event. We find it difficult to accept this line of reasoning. It is true that the State Government is silent on the question as to whether any letter was received by the then Chief Minister from the late Balukaka Kanitkar. At the same time, we cannot forget that the statement contained in paragraph (13) of the petition viz., that a letter was written to B. G. Kher through the late Balukaka Kenetkar, is vague. It does not necessarily convey the idea that the letter was addressed to B. G. Kher in his capacity as the Chief Minister of the State. In addition to being the Chief Minister, B. g. Kher was also a prominent member of the Congress organisation. It is possible that Balukaka Kanitkar, who was also a congressman, wrote a letter to B. G. Kher in his capacity as a congressman. Whatever that may be, the District Magistrate having denied the correctness of the statement, which the petitioner has attributed to himself. it is not possible to hold that the petitioner had made it clear to his audience that he did not like the idea of Nathuram Godse contemplating the murder of Mahatma Gandhi.

(14) Mr. Pathak contended that the past record of the petitioner is clean ; that the petitioner has rendered service to the country in various capacities including the offering of Salt Satyagrah and that at any rate since 1957 he retired from active politics. He also pointed out that the occasion of Satyavinayak Mahapooja was a unique one and there was no question of its repetition. The Mahapooja was performed on account of the release of Godse and Karkare and such an occasion cannot repeat itself. Mr. Pathak’s argument, therefore, was that one speech could not afford sufficient material on which the District Magistrate could form an opinion that the petitioner, if left free, would indulge in activities prejudicial to the defence of India or the public safety or the maintenance of public order. No inference can be raised from a solitary act and there must be a series of acts committed in the past on the basis of which alone it is safe to draw an inference about the possibility of the petitioner indulging in prejudicial activities. Mr. Pathak relied upon certain observations in some of the judicial pronouncements. He referred to the observations of Kania C. J. in A.K. Gopalan Vs. The State of Madras, to the following effect (at p. 43) :

“. … . For preventive detention action must be taken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period.”

He also referred to the following observation of the Supreme Court in Bhim Sen For R.S. Malik Mathra Das and Others Vs. The State of Punjab, :

“In our opinion, the High Court approached the matter quite correctly. Instances of past activities are relevant to be considered in giving rise to the subjective mental conviction of the District Magistrate that the appellants were likely to indulge in objectionable activities.”

As a general rule, in order to afford a proper basis for drawing a correct inference about the possible course of conduct of a detenu, it is necessary to take into account the detenu’s past conduct. From his actions in the past it is possible to draw an inference that he would repeat similar acts in future. The process evidently is an inductive process based on past experience. The saying that one swallow does not make a summer is pregnant with meaning. That does not, however, mean that in no case it is possible or open to the detaining authority to form an opinion about the possible course of conduct of the detenu from a solitary instance. If the instance is of a glaring character, then it may afford a basis for drawing an inductive inference about the future course of action likely to be pursued by the detenu. For instance, if a detenu has made a speech advocating the overthrow of the Government by violent means and has exerted the gathering to take recourse to direct action, that one speech could form a solid basis on which the detaining authority could take action. It cannot, therefore, be postulated as a proposition of law that in no case action can be taken by the detaining authority on the basis of one instance or one speech. It is true that the occasion such as the performance of the Mahapooja on account of the release of Godse and Karkare would not be repeated. It is also true that the petitioner did not participate in the function celebrated on 15-11-1964. The District Magistrate has stated that the fact that the petitioner did not attend the function held on 15-11-64 is a matter of coincidence. This statement is obviously of an inferential character. The Govt. Pleader explained that what the District Magistrate meant to convey was that by reason of the fact that the petitioner has sympathies for the cause and holds admiration for Nathuram Godse, he would not have failed to attend the second function, and since he did not attend it, this must be attributed to some fortuitous event. If the District Magistrate felt that it was not unlikely that similar speeches would be delivered infuture and that it was necessary to prevent the occurrence of such speeches. It is impossible to hold that the opinion formed by the District Magistrate was without foundation or without reason.

(15) Mr. Pathak then pointed out that the petitioner has been detained for three reasons viz., to prevent him from acting in a manner prejudicial to (1) the defence of Inida, (2) the public safety and (3) the maintenance of public order. He contended that one of the reasons viz., that the petitioner had acted or was likely to act in a manner prejudicial to the defence of Inida, does not and cannot exist in the present case. Mr. Pathak pointed out that the petitioner is a nationalist and owes no allegiance to any foreign country. The defence of the land is a matter of vital convert for him. It is, therefore, impossible to imagine that he would carry on any activities , which would prejudice or hamper the defence of the country. Basing himself on this premise, he argued that if one of the grounds the defence of India, turns out to be non-existant, then the entire order of detention becomes vitiated. According to the learned Government Pleader the activities, such as the delivery of speeches praising Nathuram Godse for the assassination of Mahatma Gandhi are likely to be repeated and there is every possibility of the law and order in Poona and the whole of Maharashtra coming into Jeopardy. In this context, he referred to the fact that in 1948 communal violence erupted on a large scale in the whole of Maharashtre. Reference has been made to this aspect in the judgment of the Full bench of this Court referred to above. It is stated:

“. . . . . . He (the petitioner in his article in Kesari) also refers to various unfortunate incidents that resulted upon the death of Mahatma Gandhi, when a section of the people took it into its head to punish another section, which, they though,. was associated in some way or the other with the death of the Father of the nation.”

It is true that the District Magistrate has not referred in his affidavit to the events, which occurred in 1948, nor to the possibility of occurrence of similar events as a result of the petitioner’s speech. It may, however, be mentioned that the District Magistrate in his affidavit filed in reply to the petition made by Gopal Godse (Cri. Appln. No. 367 of 1965 (Bom)), which was decided by the Division Bench comprising V. s. Desai & Bal, JJ., had, in effect stated as follows:

“The acts of the petitioner on the 12th and 15th November gave rise to consequences which disturbed public peace and order. His acts, therefore, were prejudicial to the maintenance of public peace and order”.

It may further be pointed out that the District Magistrate Ahmednagar, in his affidavit in Criminal Appln. No. 674 of 1965 (Bom) filed by Vishnu Karkare which is heard along with this petition, has stated at paragraph (10) as follows:

“The petitioner and his friends made speeches at this function justifying the assassination of Mahatma Gandhi and praising Naturam Godse for the same. This function was not a merely family function. It was a public function specially organised by the friends and admirers of Nathuram Godse. These two functions of the 12th and 15th November 1964, evoked considerable wrath among all sections of the people and the press in the State. Several Public meetings were held to condemn these attempts to glorify Nathuram Godse and other assassins as martyrs. The atmosphere of Poona and Ahmednagar was surcharged with anger and tension and there was every possibility and a grave danger of repetition of the disturbances and riots that followed the assassination of Mahatma Gandhi in 1948.”

The Government Pleader, therefore, contended that his possibility of communal violence was taken into account by the District Magistrate in passing the order of detention. If any such violence occurred, the Government Pleader argued, the efforts at mobilisation of the defence resources would be hampered. Every fraction of the military power must be available for the defence of the country during times of emergency. He pointed out that Poona is a place of strategic importance. There is a big ordinance factory situated near Poona and a large military force has been stationed at Poona. The help of the military would have to be requisitioned in case of repetition of communal violence on a large scale. Thus, according to him would affect the defence of India and out military preparedness to meet the challenge posed by external aggression.

(16) As reply to the above arguments, Mr. Pathak contended that the train of consequences suggested by the Government Pleader was far fatched, remote and not intimately connected with the activity indulged in by the petitioner. He argued that the c connection between the activity and prejudice to the defence must be direct, proximate and intimate. The nexus between the two must be reasonable and rational and not fanciful. In that connection, he referred to the decision of the Federal Court in Rex v. Basudeva AIR 1950 PC 67. The facts in that case were:

Basudeva was a dealer in kerosene oil which is an essential commodity. The Provincial government was satisfied that the respondent habitually indulged in black marketing. He was arrested on 19th December 1948 and ordered to be detained in exercise of the powers conferred by section 3(1) (I) of the U. P. Prevention of Black-Marketing (Temporary Powers Act. The High Court set aside the order and released him . Appeal was preferred by the government to the Federal Court. The Advocate General urged that habitual black-marketing in essential commodities was bound sooner or later to cause a dislocation of the machinery controlled distribution which, in turn, might lead to breaches of the peace and that, therefore, detention with a view to prevent such black-marketing was covered by the entry.

The learned Judge in reply to the above argument observed (at p. 68):

“It is true that black-marketing in essential commodities may at times lead to a disturbance of public order, but so may, for example, the rash driving of an automobile or the sale of adulterated foodstuffs. Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot, in our opinion, fall within the purview of Entry I of list II. . . . . . . . . . . . . . . . . . The c connection contemplated must in our view, be real and proximate, not farfetched or problematical.”

This proposition was accepted as correct by the Supreme Court in The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, . Subbarao J who delivered the judgment of the Court, says (at p. 836) (of SCR) : (at p. 640 of AIR):-

“The decision (in AIR 1950 PC 67), in our view, lays down the correct test. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate c connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order”.

There is some substance in the argument advanced by Mr. Pathak viz., that the connection between the activities of the petitioner and the defence of India is not quite intimate or direct. At the same time, it is difficult to say that the c connection between the two is too remote or too tenuous. What would have been regarded as a remote c connection in times of normalcy may not be so remote during times of emeregency. Difference between nearness and remoteness may become only a difference of degree and not of kind. A breach of peace in one part of the country may hamper the defence of India as a whole. Assuming that the c connection is somewhat remote and indirect, the question that will have to be considered is whether merely because one of the purposes for which the detenion has been ordered is not directly served, the entire order of detention in which the order purposes have been mentioned can be treated as a invalid. Mr. Pathak relied upon the deception of the Supreme Court in Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, , in which the Supreme Court held;-

“Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based, if some out of them are found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order or grounds, would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority.”

It is significant that in that case it was found that one of the grounds was completely non-existent. In the present case, it is not possible to conclude that the found of the defence of India is totally irrelevant or non-existent. At best the c connection between the activities of the petitioner and the defence of India is somewhat indirect and circuitous. In the same judgment, their Lordships have added the caution in the following words (at p. 165):

“In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders”.

All that need be considered so far as the question of the defence of Inida, which is one of the grounds mentioned in the order of detention, is concerned is, whether that ground has a rational probative value or whether it is completely extraneous. There can be no doubt that the other two grounds mentioned in the order of detention viz., public safety and public ortder, have a direct c connection with the activities of the petitioner as envisaged by the District Magistrate on which he left satisfied that it was necessary to detain the petitioner. According to us, the third ground viz., that the activities of the petitioner are prejudicial to the defence of Inida, can be reasonably connected with it, though in somewhat indirect manner.In our view, therefore, the order of detention does not become invalid on that ground.

(17) Mr. Pathak then argued that the argument advanced by the Government Pleader viz., that a section of the people would take the law in their own hands and thus there will be an orgy of communal violence resulting in breach of peace is fallacious. He argued that the District Magistrate must come to the conclusion that the activities of the petitioner would lead to the breach of public order or prove to be prejudicial to the maintenance of public safety. He contended that the activites of the petitioner are throughly legal and if certain section of the people gets enraged over his activities and decides to break law and order, proper course for the District Magistrate would be to employ sufficient force for meeting the threat to public order offered by that section. In support of this argument, he relied upon the leading case in Beatty v./ Gillbanks (1882) 9 QBD 308. what had happened in the case was as follows;

The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be committed by those who opposed it.

It was held that they could not be rightly convicted of an unlawful assembly. Prof. A. v. Dicey in his famous book “The Law of the Constitution”, 10th Edition, 1960, has referred to this case and has made the following observations: (At p. 274)

“. . . . . . . . . . . The plain principle is that ‘A’s right to do a lawful act, namely, walk down the high Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock ‘A’ down. This is the principle established, or rather illustrated, by the case of Beatty v. Gillbanks (1882) 9 QBD 308. the salvation Army met together a Western-super mare with the knowledge that they would be opposed by the Skeleton Army. The Magistrates had put out a notice intended to forbid the meeting. The Salvationists, however, assembled,were met by the police, and told to obey the notice. X, one of the members declined to obey and was arrested. He was subsequently, with others, convicted by the magistrates on a summary charge of unlawfully assembling in breach of the peace in a public thoroughfare and bound over to keep the peace. it was an undoubted fact that the meeting of the Salvation Army was likely to lead to an attack by the Skeleton Army, and in this sense cause a breach of the peace. The conviction, however, of X by the magistrates was quashed on appeal to the Queen’s Bench Division.”

Dicey then cited the following passage from the judgment of the Queen’s Bench Division with approval: (At p. 275)

“What has happened here, says Field J., is that an unlawful organisation (the Skeleton Army) has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justice amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition”.

At p. 276, Dicey has quoted a sentence from the judgment of O’Brier J. in the Queen v. Justice of Londonderry to the following effect:

“If danger arises from the exercise of lawful rights resulting in a breach of sufficient force to prevent that result, not the legal condemnation of those who exercise those rights”.

The principle laid down in (1882) 9 QBD 308 is certainly unexceptional. The question in that case was whether by reason of the fact that breach of peace took place, the meeting which was lawful and which assembled for a lawful purpose would become an unlawful assembly. The learned Judges held that to hold so would be preposterous. As a matter of fact, the Magistrates had convicted the members of the assembly which had met for a lawful purpose, on the ground that the assembly become unlawful. In the present case, we are not considering the question as to whether the petitioner should be punished for the activities indulged in by him. It is not suggested that the speech made by the petitioner contains anything which is punishable under the law of the land. Short of offending any express provision of law, the speech may be so objectionable as to offend the sentiments of the public or a section thereof. In such a case, the question is whether preventive action can be taken in the interests of the peace of the land. Under certain circumstances, the peace of the land may be paramount and decisive consideration. In this connection, we may refer to the passage in Notes (a) and (b) to the decision in (1882) 9 QBD 308 in the famous book “Cases in Constitutional Law” by Keir and Lawson, 4th Edition, 1954, at pp. 407

“Note (a). the question then seems to be reduced to this ; assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff’s meeting was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken and that, by whatever means were available for the purpose. Furthermore, the duty of a Justice of the Peace being to preserve the peace unbroken he is, of course, entitled, and in part bound, to intervene the moment he has reasonable apprehensions of breach of the peace being imminent; and; therefore, he must in such cases necessarily act on his own reasonable and bonafide belief,as to what is likely to occur.. . . .

Note (b). .. . . . . . But, assuming this to be the law, the jurisdiction can only be exercised when some facts are proved from which it can be reasonably inferred that there was actual danger of the peace being broken, or of a crime being committed and that such danger was, in some intelligible way, the consequence of the conduct of the person required to give the sureties . . . . . . . ..”

According to the District Magistrate, the speech delivered by the petitioner was objectionable and in a sense inflammatory. to refer to Nathuram Godse as a patriot and to eulogize him for the act committed by him cannot be treated as a legal or an innocuous activity. It may be that it is possible to make a distinction between the eulogy of the assassin for his individual qualities and the eulogy for the act done by him or the praise of the act itself. But, that distinction can be made by people of intelligence, ability and subtlety. It is difficult for the ordinary people to understand the subtle distinction between the two positions. Now, if as a result of the indiscriminate praise of Nathuram Godse, the assassin of Mahatma Gandhi, the District Magistrate apprehends that breach of the peace was likely, would it be proper to fall back upon the principle laid down in (1882) 9 QND 308 or Diecy’s exposition of the law of public meeting. The action taken by the District Magistrate is of a preventive character. the very essence of the action if to forestall the happening of untoward incidents. In taking this action the District Maigstrate is not concerned only with the legalistic aspect of the activities of the petitioner. Even if the activites do not infringe any law, but at the same time are deter mental to public peace, it would be legitimate for the District Magistrate to have recourse to the sma.e The legislature has given ample discretion to the District Magistrate for taking preventive action. As soon as he comes to the conclusion that the activities of the detenu are prejudicial for the defence of India or the maintenance of public order or public safety it would be open to him to pass an order for detention. The version of the speech as given by the district magistrate is not liable to be challenged in a Court of law and the court has no power to go behind the same. Agains,. it is difficult to characterise the speech as wholly harmless. If that is so, then it is for the District Magistrate to form an opinion as to whether as a result of the speech and the activities of the organisers there was danger to public safety or public order or even to the defence of the country.

(18) That takes us to the last point urged by Mr. Pathak viz., that the detention order was actuated by malice. Mr. Pathak suggested malice in fact as also malice in law as being responsible for the action taken by the District Magistrate. In this connection, he pointed out that the District Magistrate of Poona and Ahmednagar has passed th orders of detention on the same day i.e., 24-11-1964, and as many as eleven persons were kept detained by these order. According to Mr. Pathak the fact that simultaneous action was taken by the two District Magistrates is indicative of a central direction and a central plan. Mr. Pathak also pointed out that no action was taken on 24-11-64. In Criminal Appln. No. 674 of 1965 (Bom) filed by Vishnu Karkare, the District Magistrate of Ahmednagar has put in his affidavit stating that his predecessor had received a report relating to the fact that an atmosphere of tension prevailed in the districts of Poona and Ahmednagar on account of the activities of the petitioner and, therefore, he apprehended that there was likelihood of repetition of the events of 1948. Mr. Pathak contended that if at all the District Magistrate of Ahmednagar had received such a report, he would get it from the District Superintendent of Police, Poona or the District Magistrate, Poona. He also referred to the questions put in the State Assembly and also in the Parliament and the replies thereto and according to him this clearly shows that there was a central direction so far as the orders of detention passed against the eleven petitioners are concerned. he also set out other grounds from which, according to him, malice could be referred. But, before dealing with them we will dispose of the first line of attack in this regard. In considering the question of mala fides. It is necessary to remember that the burden of establishing malice or mala fides lies upon the petitioner in AIR 1945 18 (Federal Court) learned Judges have cited with approval a passage from the judgment of Viscount Maugham to the following effect; (At p. 20)

“Once the order is proved or admitted, it must be taken prima facie, this is, until the contrary is proved, to have been properly made and that the requisite as to the belief of the secretary of State (here, the Governor) was complied with.”

The learned Judges observed: (AT p. 20)

“It was no doubt open to the detenu to show that the order was not in fact made. the Governor of Bihar or that it was a fraudulent exercise of the power. The observations in (1942) AC 206 and (1942) AC 284 establish that the burden of substantiating these pleas lies on the detenu.”

The mere fact that orders of detention were passed by the District Magistrate of the two Districts on the same date by itself is not sufficient to show that these orders were the result of any direction from the State government. It is an admitted fact that publication of the reports of the petitioner’s speech created a commotion and agitated questions were asked both in the State Assembly and the Parliament. It is, therefore, quite likely that the District Magistrate of Poona as also of Ahmednagar started making enquiries in these matters and sought reports regarding the correct position prevailing in the two distrcits. It is equally possible that the Inspector-General of Police asked the district Superintendents of Police of the various districts to assess the situation and make reports to their respective District Magistrate. It is also possible that the District Superintendents of Police of the various districts exchanged notes and information as between them. We are not, therefore prepared to countenance the argument that the orders of detention passed by the District Magistrates of Poona Ahmednagar were due to central direction of the State Government or of the Union Government of that pressure was brought to bear upon them by certain individuals.

(19) Mr. Pathak pointed out that the Union Government has appointed a one-man Commission presided over by G. S. Pathak an eminent jurist, to make an inquiry into the correctness or otherwise of the report viz., that the petitioner’s speech showed that he had prior knowledge about the plan of Mahatma Gandhi’s assassination. N. G. Abhyankar, who is also a detenu and who also filed an application (No. 614 of 1965) which is heard along with this petition, in his petition at paragraph (5) has set out the terms of reference of Pathak Commission in the following words:

“Moreover, the Government of India’s declaration dated 25-3-65 confirms that appointment of one-man Commission of shri G. S. Pathak is made to enquire whether the persons and in particular G. V. Ketkar of Poona had prior information of the conspiracy of Nathuram Vinayak Godse and others to assassinate Mahatma Gandhi and whether any such persons have communicated the said information to any authorities of the Government of Bombay or the Government of India and if it was so, what action was taken by the Government of Bombay and Government of India on the basis of the above information”. . According to this averment, the purpose to be served by the inquiry to be instituted by G. s. Pathak is twofold; (1) to ascertain whether any persons or in particular, G. V. Ketkar had any prior information about the conspiracy to murder Mahatma Gandhi, and (2) whether such persons (including the petitioner) had communicated the said information to any of the authorities of the Government of Bombay or the government of India. Mr. Pathak’s argument was that the appointment of the Commission to make an inquiry into the above allegations is just an eye-wash. The Union Government is not serious to complete the inquiry. He suggested that both the State Government and the Union Government felt embarrassed by the disclosures contained in the petitioner’s speech viz., that he had communicated the information to B. G. Kher, the then Chief Minister of Bombay. According to him, one of the reasons for taking action against the petitioner and others was to shift the blame for their failure to take proper action to prevent the assassination of Mahatma Gandhi and the other was to divert public attention from that fact. According to Mr. Pathak, the Commission has not started its work so far. He pointed out that no notice has yet been served on the petitioner or anyone else regarding the sittings of the commission. Mr. Pathak argued that one of the objects in keeping the petitioner and others in detention is to prevent them from putting forth their case before the Pathak Commission. In our view, all these arguments are speculative and beside the point. The Commission has been appointed by the Union Government. The object of the inquiry has nothing to do whatsoever with the detention of the petitioner and others. The principal object of the inquiry as stated by Abhyankar one of the detenus, is to ascertain whether the petitioner had any prior knowledge or information about the conspiracy to murder Mahatma Gandhi and if so, whether he had taken any steps in preventing the same being fructified by communicating the information which he had at his disposal. It is possible that if the Pathak Commission recorded a finding in favour of the petitioner viz., that he had no definite information as such but that he had inferred from certain speeches of Nathuram Godse that he was likely to commit the assassination of Mahatma Gandhi and that having been scared by the mere possibility of any such thing heppening, he forwarded the information to the then Chief Minister, B. G. Kher, then the Government may reconsider the question of the petitioner’s detention. From that point of ivew, it can be said that it would have been better if the commission had started its work and completed its inquiry earlier. But neither the District Magistrates of Poona and Ahmednagar nor the State Government have control over the Commission appointed by the Union government. Even the State Government cannot ask the Commission to expedite its work. It is doubtful whether the Union Government can call upon G. S. Pathak to expedite the inquiry. The order of detention was passed as far back as 24-11-64 and the declaration about the appointment of the Commission of Inquiry was made by the Union Government on 25-3-1965. We have not been able to appreciate at all that there is any c connection or nexus between these two events. We do not, therefore, think that there is any substance in the allegation that the detention is malicious.

(20) The alternative line of argument viz., that the State and the Central Government felt embarrassed by the disclosures made by the petitioner, also does not appear to us to be sound or having any c connection with the bonafides of the order of detention. In this connection, it may be noted that in his article in Kesari dated 15-11-1949, the petitioner, after stating that Balukaka Kanetkar drew the attention of the then Chief Minister of Bombay to Naturam Godse’s statement that he (Godse) would not allow Gandhiji to live for 125 years stated:

“. . . . No action was taken because both the Chief Minister and the Home Minister had great faith in Gandhiji’s power to pacify his extremist opponents, and they though nothing serious was intended by these words and nothing serious would come about”.

(Vide Full Bench judgment) in Cri. Appln. No. 136 of 1950, d/- 13-4-1950).

Again, had it been true that the State and the Central Government had felt embarrassed by the disclosures, the Central Government would not have asked the commission of Inquiry to Investigate the question as to whether the petitioner and others had communicated the said information to the authorities of the Government of Bombay or the Government of India, It is true that the State Government has not traversed the allegation made in the petition viz., that the late Balukaka Kanetkar communicated the information by a registered letter to the late B.G. Kher, the then Chief Minister of Bombay. We have already pointed out that this may be due to this ambiguity of the statement viz., whether the information was communicated to B. g. Kher in his capacity as the Chief Minister or in his capacity as a Congress leader. whatever that may be, we do not think that there is any c connection between the orders of detention passed by the District Magistrates of Poona and Ahmednagar and the question of disclosure or non-disclosure of the information by the petitioner and other to any of the authorities . The District Magistrate has emphasized that he examined the material himself, considered the activites of the petitioner and then came to his own conclusion that it was necessary to deta in the petitioner. he has denied that he was in any way influenced either by the State Government or the Union Government. In this onnection, it may be pointed out that although 125 to 150 persons who attended the function of 12-11-64 and out of 250 persons or so who attended the function of 15-11-64, only eleven have been kept detained so far. That shows that the action of the District Magistrate is not indiscriminate and has been taken after careful consideration of the merits of the case of each individual. There is, therefore, no substance in this application. The application fails and the rule is discharged.

(21) Before concluding, we may point out that we had suggested to the Government Pleader to consult the Government whether it is prepared to reconsider the case of the petitioner and others in view of the fact that the detenus expressed their readiness to give an assurance to the Government that they would not repeat such activities and that seven or eight months have elapsed after the petitioner and others have been detained. It is possible that the passions that were roused on account of the two functions and the speeches delivered on those occasions might have died down or at least might have considerably cooled down. The Government Pleader after consulting the State Government reported to us that the Government was not prepared to reconsider the position at this juncture. Although the Government has not thought it fit to review the position of the petitioner and other detenus at this juncture, we hope that at an appropriate moment the Government would reconsider the whole position and see whether in view of the changed conditions, it is necessary to keep the petitioner and others in continued detention. In this connection, it may be pointed out that our suggestion to the Government was prompted by the readiness expressed by the petitioner and others to give an assurance that they would not indulge in similar activities or embark upon functions similar to those held on the 12th and 15th November 1964. They have reiterated their readiness and added that they would refrain from saying anything which would amount to direct or indirect praise of Nathuram Godse and his associates. We have asked the Government Pleader to convey to the government the assurances given by the petitioner and others and their readiness to give undertakings in any form to the Government in that regard. As stated above, our suggestion to the Government Pleader arose out of the offer of assurances given by the petitioner and others. We are assured that the petitioner and others are ready to give written undertakings to the Government in this regard. The petitioner, Ketkar, also stated that he was prepared to stay outside the district of Poona for a period of an year or so. We feel confident that the Government would take into account the change in the circumstances and the assurances given by the petitioner and others. We have no doubt in our mind that the Government would, not do anything which would lay itself open to the charge that its action is motivated by political vendatta. We would suggest to the Government Pleader to send a copy of this judgment to the Government for such action as it may deem necessary in the light of these observations.

(22) Rule discharged.


 

Application of mind is sine qua non in an executive action to arrive at subjective satisfaction- J&K High Court

08-04-2010-The grounds of detention ex facie are vague, ambiguous and sketchy and not clear and unambiguous enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged “thought process”, “well knit group” at the back of the detenue and the activities that “create law and order problem”. The detenue is not informed who are the people who constitute the “well knit group” at back of the detenue, what changes were expected to be made by the detenue in his “thought process”. What are law and order and “socio-economic” problem that the detenue is likely to create and how are such problems intended to be created. The detenue is not informed about “socio economic problem” that the activities attributed to the detenue result in. The grounds of detention thus are vague, sketchy and lacking in essential details.

(2010) 2 JKJ 652 : (2010) 23 RCR(Criminal) 530

JAMMU AND KASHMIR HIGH COURT AT SRINAGAR

SINGLE BENCH

( Before : Gh. Hasnain Massodi, J )

MASARAT ALAM BHAT — Appellant

Vs.

STATE OF JAMMU & KASHMIR AND OTHERS — Respondent

HCP No. 25 of 2010

Decided on : 08-04-2010

Constitution of India, 1950 – Article 21, Article 22

JUDGMENT

Gh. Hasnain Massodi, J.—Challenge is to order No. DMS/PSA/65/2009 dated 02.02.2010 whereby District Magistrate Srinagar -Respondents No. 2 herein, has ordered preventive detention of Shri Masarat Alam Bhat S/o Abdul Majid Bhat R/o Zaindar Mohalla Srinagar (herein after referred to as detenue) and directed his lodgment in District Jail Kathua. It remains to be known whether detention order has found approval of the Government required u/s 8 (a) of the Public Safety Act 1978 (Act for short) or the matter has been placed before the State Advisory Board in compliance of Section 1 3 of the Act and approved by the State Advisory Board. There is not even a whisper in this regard in the counter affidavit filed by the Respondents.

2. It appears that the detenue has been in continuous custody since 5.9.2008. The detenue was placed under preventive detention vide order No. DMS/PSA/20/2008 Dated 9.9.2008. The detention order was questioned before this Court and quashed on 27.12.2008. The Respondents instead of releasing the detenue, slapped one more detention order No. DMS/PSA/41/2009 dated 21.1.2009 on the detenue. Challenge was thrown to the aforesaid order before this Court and the Detention Order met the same fate on 25.5.2009. The detenue, however, was not released and the Respondents vide order No. DMS/PSA/14/2009 dated 09.06.2009 directed preventive detention of the detenue and his lodgment in District Jail Rajouri. The said detention order became subject matter of HCP No. 108/2009. This Court on 18.08.2009 again quashed the detention order and directed immediate release of the detenue. The Respondents did not abide by the Court order and instead vide order No. DMS/PSA/39/2009 dated 12.09.2009 ordered preventive detention of the detenue and directed the detenue to be lodged, this time, in District Jail Udhampur. The detenue un-tired by the successive detention orders approached once again this Court with HCP questioning legality of the Detention Order. The Respondents during pendency of the petition, on 29.10.2009, revoked the detention order dated 12.09.2009. The Respondents, nonetheless, avoided to release the detenue and once again ordered preventive detention of the detenue vide order No. DMS/PSA/39 dated 19.11.2009. The fresh detention order was again assailed before this Court as violative of the fundamental rights of the detenue. The challenge to the detention order dated 19.11.2009 succeeded on 30.12.2009 and Respondents were directed to release the detenue. The Respondents, however, not in a mood to release the detenue, symbolically arrested the detenue in connection with case FIR No. 34/2006 P/S Nigeen and thereafter FIR No. 7/2010 P/S Maisuma while the detenue continued to be in custody. The Respondent No. 2 thereafter on 2.2.2010 made a fresh detention order which is subject matter of the present petition. Even prior to 5.9.2008, the detenue was put under preventive detention in 1990, 1993, 1997, 2001, 2003,2007 and 16.1.2008. The averments made in this regard do not find any reply in the counter affidavit sworn by the Respondents.

3. The Petitioner throws challenge to the latest detention order (No. DMS/PSA/65/2009 dated 02.02.2010) broadly on following grounds:

1) That the Petitioner immediately after his detention under the impugned order was not informed that the detenue had a right to make a representation against his detention to the Respondent No. 2 and also to the Government and the Respondents by omitting to follow the mandate had violated the constitutional and statutory safeguards, available to the detenue.

2) That the Respondents did not supply the material that was said to have persuaded the Respondent No. 2 to order preventive detention of the detenue and by their failure to provide said material, the Respondents had in effect deprived the detenue of his constitutional and statutory right to make an effective representation against his detention.

3) That the grounds of detention claimed to have led the Respondent No. 2 to believe that preventive detention of the detenue was necessary to achieve the objects spelt out in Section 8 of the Act, are vague, sketchy and ambiguous and practically made it impossible for the detenue to make a representation against his detention.

4) That the grounds claimed by Respondent No. 2 to have led him to find it “expedient to issue detention warrant against” the detenue under the Act, are foreign to the grounds contemplated by Section 8 of the Act.

5) That the Respondent No. 2 while making the detention order in question, failed to apply his mind to the material placed before him and the impugned order was thus made in a mechanical manner.

4. The Respondents in their counter affidavit have merely reproduced the grounds of detention, recorded by the Respondent No. 2 and insisted that the activities of detenue were considered to be highly prejudicial to the security of the State. The Respondents have insisted that the detenue was informed about his right to submit his representation against the detention to the Government and as per requirements of the Act, the grounds of detention were also served on the detenue. The activities of detenue highlighted in grounds of detention, according to Respondents, were by themselves compelling reasons to detain the detenue under the Act. The Respondents in their counter affidavit have insisted that detention order was perfectly valid and issued in accordance with the provisions of the Act.

5. Heard and considered.

6. Challenge to the detention order No. No. DMS/PSA/65/2009 dated 02.02.2010 whereby the Respondent No. 2 has ordered preventive detention of the detenue and his lodgment in District Jail Kathua, must succeed on the following grounds:

(I) The detention record made available by Ld. AAG, does not indicate that the detenue was at the time of execution of the detention order/warrant, informed that the detenue had a right to make a representation to the Respondent No. 2 i.e Detaining Authority, as also to the Government against his detention. Article 22(5) Constitution of India (“Constitution” for short) requires the authority making the detention order, to afford the detenue the earliest opportunity of making a representation against the order. The constitutional safeguard can be made operational only when the detenue is informed at the time of execution of the detention order/warrant that the detenue has a right to make a representation not only to the Government but also to the Detaining Authority. The expression “earliest opportunity” makes the intention of framers of constitution very clear that the opportunity to make representation, is to be afforded immediately after the detenue is put under detention. The detention order in terms of Section 8 of the Act is to come to an end within a period of 12 days from the date the detention order is made, unless it finds approval of the Government.

Having regard to the constitutional mandate, there is no reason to infer that the detenue has to exercise his right to make a representation against his detention only after the period of 12 days. The constitutional safeguard finds expression in Section 13 of the Act. In the present case, as already stated there is nothing on the record to suggest that the detenue was informed at the time the detenue was detained in pursuance of the detention order that the detenue had a right in terms of article 22(5) of the Constitution as also Section 13 of the Act to make a representation against his detention. There has been thus gross violation of constitutional and statutory rights of the detenue. Reference in this regard may be made to law laid down in State of Maharashtra v. Santosh Shanker Acharya AIR 2000 2504.

(II) The detention order in question makes mention of “material record such as dossier and other connected documents” to have been gone through by the detaining authority and relied upon, while making the detention order. The detention record does not indicate anywhere that the “material record” was at the time of detention order or thereafter provided to the detenue. The grounds of detention, likewise make a mention of the previous detention orders slapped on the detenue as also his involvement in case FIR No. 34/2006 P/S Nigeen u/s 13 ULAP Act and 153-A RPC , FIR 7/2010 P/S Maisuma. The said material has admittedly weighed with the Detaining Authority while recording its subjective satisfaction regarding placement of the detenue under preventive detention. The material viz. copies of FIR, material collected during investigation, does not appear to have been supplied to the detenue at the time of the execution of the detention order or at any time thereafter. These documents were necessarily to be made available to the detenue so as to enable the detenue to make an effective representation to the Detaining Authority or the Government explaining his conduct and making an effort to dispel apprehension nursed by the Detaining Authority as regards alleged activities of the detenue. The detenue resultantly has been deprived of exercising his Constitutional and Statutory right guaranteed under Article 22(5) of the Constitution and Section 13 of the Act to file an effective and meaningful representation against his detention. The Respondents thus, have observed their Constitutional and Statutory obligation in breach. The Respondents by withholding the material that was perused and relied upon to order detention of the detenue, to conclude that the activities of the detenue were prejudicial to the security of the state, have made the detention order liable to be quashed. The conclusion drawn finds support from law laid down in Dhananjoy Das Vs. District Magistrate, Darrang and Another, , Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , Union of India (UOI) Vs. Ranu Bhandari, Syed Aasiya Indrabi v. State of Jammu and Kashmir and Ors. And Thahira Haris etc. Vs. Government of Karnataka and Others, .

(III) Article 22(5) Constitution provides a precious and valuable right to a person detained under preventive detention law – J&K Public Safety Act 1978 in the present case, to make a representation against his detention. It needs no emphasis that a detenue on whom preventive detention order is slapped, is held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or to maintenance of the public. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making a representation against his detention. The object is to enable the detenue to convince the Detaining Authority and the Government, as the case may be, that all apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to the detenue meaningful, it is necessary that the detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded the Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention.

In the present case, the reasons spelt out in the grounds of detention include an apprehension that there has been no change in detenue’s “thought, process” and that detenue is “incorrigible secessionist” who is threatening the police officers even when the detenue is under detention. The other ground that he is claimed to have weighed with the Detaining Authority, is that the detenue has a “well knit group” backing the detenue. The detenue is informed that his activities do not only create “law and order problems” but also creeite “socio economic problems” because the detenue, in words of Detaining Authority is “mentor of enforcing hartals, strikes and other such activities which hamper the growth and development”. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear and unambiguous enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged “thought process”, “well knit group” at the back of the detenue and the activities that “create law and order problem”. The detenue is not informed who are the people who constitute the “well knit group” at back of the detenue, what changes were expected to be made by the detenue in his “thought process”. What are law and order and “socio-economic” problem that the detenue is likely to create and how are such problems intended to be created. The detenue is not informed about “socio economic problem” that the activities attributed to the detenue result in. The grounds of detention thus are vague, sketchy and lacking in essential details. The Respondents, by their conduct, have deprived the detenue of his constitutional and statutory rights guaranteed under Article 22(5) and Section 13 of the J&K Public Safety Act. It is well settled law that even if one amongst various grounds of detention, is found to be vague, the Constitutional and statutory safeguards available to the detenue are to be held to have been violated. Reference in this regard may be made to law laid down in Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, ; Chaju Ram Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, ; and Syed Aasiya Indrabi v. State of J&K and Ors. 2009 (1) SLJ 2009 219.

(IV) Section 8 of the Act, empowers the Government to order preventive detention of any person with a view to prevent such person from acting in any manner prejudicial to (i) security of the State or (ii) maintenance of the public order. In other words the Government before making a detention order is to be satisfied that the activities of the person proposed to be placed under preventive detention, are prejudicial to the (i) security of the State or (ii) maintenance of the public order. Section 83 (1) (a-1) identifies prevention of some other activities like smuggling etc to prevent which the detention order may be made. Section 8(1) (a-1) admittedly is not relevant to the present case. The law makers have not used expression “security of the State”, and “maintenance of public order” without purpose. The Detaining Authority is expected to realize that a democratic polity like ours is edificed amongst others on the ideal of personal liberty. Article 21 of the Constitution of India guarantees life and liberty of every person and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure, it needs no emphasis, has to be just, reasonable and fair. The preventive detention does not go hand in hand with the ideals of personal liberty that run through weft and warp of the Constitution of India. The Supreme Court in A.K. Gopalan Vs. The State of Madras, called Preventive Detention “Sinister looking feature, so strangely out of place in democratic constitution.

In words of Supreme Court “preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world”. The law makers alive to the spirit of the Constitution, in their wisdom, have restricted power to order preventive detention to two extreme situations that may pose threat to the very foundation of society. It is not in each and every case where apprehended activities of a person are suspected to pose a threat to law and order, peace and progress, industrial development or like matters that power u/s 8 of the Public Safety Act can be exercised. The administration may, in day in and day out, come across a number of problems and face a number of challenges which are to be dealt with by recourse to available law(s), it is not that the Government or its officers mentioned in Section 8(2) may at any time at their whim and caprice use preventive detention as a tool to find solution to the problems that are to be dealt with in a routine and normal manner. In the present case the reasons that the Detaining Authority has found so compelling as to order preventive detention of the detenue are “law and order problems”, “socio economic problems”, “interest of law and order”, “peace and security” and “growth in development of the people”. It needs no emphasis that all such apprehended problems are foreign to Section 8 of the Public Safety Act. The law requires nothing short of “security of State” or “maintenance of public order” to slap preventive detention on a person. The officer holding the post of District Magistrate of the Principal District of the State, is expected to be alive to the ambit and scope of his powers u/s 8 of the Public Safety Act. The Respondent No. 2 thus has acted in a callous and irresponsible manner while, ordering preventive detention of the detenue.

(V) The application of mind to the facts and circumstances, is a sine qua non in an executive action/order even if the authority has to arrive at subjective satisfaction while making such order. The Detaining Authority u/s 8 of the J&K Public Safety Act while making a detention order, is required to apply its mind to the facts and circumstances of the case and only after such application of mind draw conclusion that preventive detention of a person is warranted to prevent such person from acting in any manner prejudicial to the security of the State or the maintenance of the public order. The Detaining Authority is expected to be conscious of the fact that the detention order results in curtailment of personal liberty of the detenue. In the instant case non application of mind is writ large on the record. The detention order is made on 02.02.2010 and a copy thereof is forwarded to Financial Commissioner Home and other officers including Sr. Superintendent District Jail Kathua vide No. DMS/PSA/JUD/09/347-51/2009 dated 02.02.2010. However, the Detaining Authority has put his signatures on the grounds of detention on 03.02.2010 i.e a day after the detention order was made. In the circumstances the grounds of detention on which reliance was placed and the detention order made, were spelt out a day after the detention order was made. The Respondent No. 2 intriguingly has signed, the detention order on 3.2.2010. This is sufficiently indicative of the non application of mind and the detention order warrants quashment on this ground alone.

6. In the circumstances, for the reasons discussed above the detention order No.DMS/PSA/65/2009 dated 02.02.2010 impugned in the present petition does not stand legal scrutiny and is liable to be quashed. The detaining order, is accordingly quashed and the detenue namely Shri Masarat Alam Bhat S/o Abdul Majid Bhat R/o Zaindar Mohalla Srinagar directed to be released forthwith unless of course the detenue is required in connection with any other case warranting his custody or detention.

___________________________

Cases Referred

Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, AIR 1999 SC 3051 : (1999) CriLJ 4064 : (1999) 66 ECC 583 : (1999) 5 JT 577 : (1999) 4 SCALE 688 : (1999) 6 SCC 593 : (1999) 1 SCR 421 Supp : (1999) AIRSCW 2985 : (1999) 7 Supreme 407
Union of India (UOI) Vs. Ranu Bhandari, (2008) CriLJ 4567 : (2008) 10 JT 171 : (2008) 12 SCALE 452 : (2008) 17 SCC 348
Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, AIR 1979 SC 1925 : (1979) 4 SCC 370 : (1979) SCC(Cri) 999 : (1980) 1 SCR 258 : (1979) 11 UJ 708
Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, AIR 1953 SC 318 : (1953) CriLJ 1241 : (1953) 4 SCR 708
A.K. Gopalan Vs. The State of Madras, AIR 1950 SC 27 : (1950) CriLJ 1383 : (1950) 1 SCR 88
Dhananjoy Das Vs. District Magistrate, Darrang and Another, AIR 1982 SC 1315 : (1982) CriLJ 1779 : (1983) 1 Crimes 29 : (1982) 1 SCALE 636 : (1982) 2 SCC 521 : (1983) 1 SCR 122 : (1982) 14 UJ 683
Chaju Ram Vs. The State of Jammu and Kashmir, AIR 1971 SC 263 : (1971) CriLJ 281 : (1970) 1 SCC 536 : (1970) 1 SCC(Cri) 227 : (1970) 3 SCR 872
Thahira Haris etc. Vs. Government of Karnataka and Others, AIR 2009 SC 2184 : (2009) CriLJ 2451 : (2009) 5 JT 417 : (2009) 5 SCALE 388 : (2009) 11 SCC 438 : (2009) 6 SCR 941 : (2009) 4 UJ 2041

Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution- Explanation

An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. FUNDAMENTAL RIGHTS are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Dept., Ex Parte Stafford (1998) 1 WLR 503 (CA):

The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law.

16. Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.

17. Article 21 is the most important of the FUNDAMENTAL RIGHTS guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical, arduous struggles. Our Founding Fathers realized its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India.

18. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.

19. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by this Court in A.S. Mohd. Rafi v. State of Tamilnadu, AIR 2011 SC 308, and in Md. Sukur Ali v. State of Assam JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell v. Alabama 287 U.S. 45 (1932) “Even the intelligent and educated layman has small and sometimes no skill in the science of law”, and hence, without a lawyer he may be convicted though he is innocent.

20. Article 22(1) of the Constitution makes it a FUNDAMENTAL right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of Clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory.

21. In State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court observed:

…Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of FUNDAMENTAL RIGHTS or the power to issue ordinances, they assured to the people a Bill of RIGHTS by Part III of the Constitution, protecting against executive and legislative despotism those human RIGHTS which they regarded as FUNDAMENTAL. The imperative necessity to protect these RIGHTS is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human RIGHTS which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the Government we fought for”. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy and Ors. v. Union of India (UOI) and Ors., (1982) 1 SCC 271, and Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54.

(Emphasis supplied)

22. In the Constitution Bench decision of this Court in M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC 212, (para 20) this Court observed:

It is a fallacy to regard FUNDAMENTAL RIGHTS as a gift from the State to its citizens. Individuals possess basic human RIGHTS independently of any Constitution by reason of the basic fact that they are members of the human race.

23. In the 9 Judge Constitution Bench decision of this Court in I.R. Coelho (dead) by L.Rs. v. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed:

It is necessary to always bear in mind that FUNDAMENTAL RIGHTS have been considered to be the heart and soul of the Constitution….. FUNDAMENTAL RIGHTS occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable”, and primordial.

24. In our opinion, Article 22(3)(b) cannot be read in isolation, but must be read along with Articles 19 and 21, vide Constitution Bench decision of this Court in A.K. Roy and Ors. v. Union of India (UOI) and Ors., (1982) 1 SCC 271 (para 70).

25. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year’s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive.[Rekha Versus State of Tamil Nadu through Sec. to Govt. and Another (2011) 4 SCALE 387 : JT 2011 (4) SC 392 : (2011) 5 SCC 244 ]

 

Naresh Chandra Ganguli for Shri Ram Prasad Das Vs The State of West Bengal and others-20/05/1959

SUPREME COURT OF INDIA JUDGMENTS

Denouncing the agreement between the two Prime Ministers and stressing the need of forming a militia with the youths of the country, cannot be said to have no repercussions on the maintenance of public order. And lastly, any instigation against the personal safety, of the Prime Minister of India cannot but have a deleterious effect on the maintenance of public order

AIR 1959 SC 1335 : (1960) 1 SCR 412 : (1959) CriLJ SC 1501

(SUPREME COURT OF INDIA)

Naresh Chandra Ganguli for Shri Ram Prasad Das Appellant
Versus
The State of WEST BENGAL and others Respondent

AND

Ram Prasad Das Appellant
Versus
The State of WEST BENGAL and others Respondent

(Before : B. P. Sinha, S. J. Imam, J. L. Kapur, P. B. Gajendragadkar And K. N. Wanchoo, JJ.)

Criminal Appeal No. 59 of 1959 and Petn. No. 51 of 1959, Decided on : 20-05-1959

Preventive detention—Grounds—Vagueness—Meaning of—The statement of facts providing sufficient particulars to enable the detenu to make his representation—Grounds are not vague.

Vagueness is a relative term. Its meaning must vary with the facts and circumstances of each case. What may be said to be vague in one case, may not be so in another, and it could not be asserted as a general rule that a ground is necessarily vague if the only answer of the detained person can be to deny it. If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannot be said that it is vague. Further, it cannot be denied that particulars of what has taken place, can be more definitely stated than those of events which are yet in the offing.

Preventive detention—Grounds—Maintenance of public order—Denouncing agreement between Prime Minister of the country with Prime Minister of another country while stressing need forming militia with the youths of the country—The ground is not unconnected with maintenance of public order.

Counsel for the Parties:

Mr. Veda Vyasa, Senior Advocate, (M/s. S. K. Kapur and Ganpat Rai, Advocates, with him), for Appellant and Petitioner

Mr. B. Sen, Senior Advocate, (Mr. P.K. Bose, Advocate, with him), for Respondents.

Judgment

B. P. Sinha, JThis appeal, on a certificate of fitness granted by the Calcutta High Court, is directed against the order of that Court, dated January 8, 1959, in Criminal Miscellaneous Case No. 126 of 1958, refusing to issue a writ in the nature of habeas corpus in respect of one Ram Prasad Das (who will here- in-after be referred to its ‘the petitioner’). This Court, by an order dated April 20, 1950, directed that the application of the petitioner under Art. 32 of the Constitution, for a similar writ in respect of the same person be posted for hearing immediately after the aforesaid criminal appeal, and that it shall not be necessary that the petitioner be produced before this Court at the time of the hearing of the writ petition. Hence, both the matters, relating as they do, to the same subject-matter, have been heard together and will be disposed of by this judgment.

2. It appears that Naresh Chandra Ganguli, an advocate, practising in the Calcutta High Court, made an application under Ss. 491 and 561 A of the Code of Criminal Procedure, as a friend, on behalf of the petitioner, in detention in the Dum Dum Central Jail in 24 Parganas, under the orders of the Government of West Bengal. The application was made to the Calcutta High Court on the following allegations:The petitioner is the Secretary of the West Bengal Committee of the Bharatiya Jana Sangha, one of the four big political parties, as recognised by the Election Commission of India. On or about October 7, 1958, towards evening, when the petitioner was coming out of the Basanta Cabin, a tea stall, at the crossing of the College Street and Surya Sen Street, after having addressed a meeting at the College Square, he was stopped on the street by the police and was taken to the office of the Special Branch (Police) on Lord Sinha Road. From there, he was sent to the Dum Dum Central Jail, where he was served with an order, being Order No. 83 dated October 7, 1958, purporting to have been made by the Commissioner of Police, Calcutta, under the provisions of the Preventive Detention Act (IV of 1950) (hereinafter referred to as ‘the Act’).

The order is in these terms:

“ORDER Dated 7-10-58.

No. 83.

Whereas I am satisfied with respect to the person known as Sri Ram Prasad Das, son of late Bepin Behari Das of Village P. S. P. Dist. and of 6, Murlidhar Sen Lane, Calcutta that with a view to preventing him from acting in a manner prejudicial to the maintenance of Public Order it is necessary so to do.

Now therefore in exercise of the Powers conferred by S. 3(2) of the Preventive Detention Act, 1950 (IV of 1950) I made this order directing that the said Sri Ram Prasad Das be detained.

Given under my hand and seal of office.

Sd. Illegible.

Commissioner of Police, Calcutta.”

On or about October 8, 1958, the petitioner was served, in the Dum Dum Central Jail, with a further order, being Order No. 85 dated October 8, 1958, which is as follows.

“Government of West Bengal.

Officer of the Commissioner of Police,

Calcutta.

Dated 8-10 58.

No. 85.

Grounds for detention under clause (ii) of clause (a) of sub-section (1) of Section 3 of the Preventive Detention Act, 1950 (Act. IV of 1950).

To

Sri Ram Prasad Das S/o Bepin Behari Das,

of 6, Muralidhar Sen Lane, Calcutta.

You are being detained in pursuance of a detention order made in exercise of power conferred by S. 3(2)(c) of the P. D. Act, 1950 (Act IV of 1950) on the ground that you are citing in a manner prejudicial to the maintenance of public order, as evidenced by the particulars given below:

1. That on 13-9-58 you attended a meeting of Eastern Indian Refugee Council held at the Refugee office at 6 Murlidhar Sen Lane and vilified Prime Minister of India for his allegedly turning a deaf ear to the untold miseries of the refugees and while referring to the recent agreement between the Prime Ministers of India and Pakistan you vented feelings of violence against the Prime Minister of India by emphasising that in order in save the refugees and the territories of the Indian Union, Sri nehru should be murdered, if necessary and so the need of another Nathuram Godse was felt now.

2. That in course of discussion with members of your party on 17-9-58 at 6 Murlidhar Sen Lane you stated that the Indian Prime Minister had made a Present of certain Indian enclaves to Pakistan in pursuance of the policy of appeasement which has been initiated by the Late Mahatma Gandhi and called upon the members to build up strong movement against the implementation of nehru-Noon Pact. You also tried to rouse passions by alleging that the Indian Prime Minister had no sympathy for West Bengal.

3. That on 26-9-58 you attended another meeting of the South Burtolla Branch of the Jana Sangha at Jatin Mitter Park, where you denounced the aforesaid agreement between the two Prime Ministers and stressed the need of forming a militia with the youths of the country for the safety of the people living in border areas and urged all to enrol themselves for the said purpose.

4. That you intend to proceed to Delhi on 9-10-58 and that you are likely to instigate plans which may adversely affect the personal security of the Prime Minister of India. Your action above is bound to result in the maintenance of public order being prejudicially affected.

You are hereby informed that you may make a representation to the State Government against the detention order and that such representation should be addressed to the Assistant Secy. Home (Special) Department, Government of West Bengal, and forwarded through the Supdt. of the Jail in which you are detained as early as possible.

You are also informed that under S. 10 of the P. D. Act, 1950 (IV of 1950) the Advisory Board shall if you desire to be heard hear you in person and that if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government.

Sd. Illegible.

Commissioner of Police, Calcutta.”

3. On or about October 11, 1958, the petitioner was served with another order which is in these terms:

“Government of West Bengal,

Home Department. Special Section.

ORDER

Calcutta, 11-10-58.

No.1882 E. 8.

In exercise of the power conferred by Section 3(2) of the Preventive Detention Act, 1950 (IV of 1950), the Governor is pleased to approve order No. 83 dated the 7-10-58 made under Section 3(2) of the said Act by the Commissioner of Police, Calcutta directing that Sri Ram Prasad Das son of Late Bepin Rehari of 6, Murlidhar Sen Lane, Calcutta be detained.

By order of the Governor.

Sd. Illegible.

Dy. Secty. to the Govt. of West Bengal.”

4. The petitioner made a representation in writing against the order of detention aforesaid, denying and refuting the grounds of his detention, set out above. He particularly denied the allegation contained in ground No. 1 aforesaid, as totally false, and stated that there was no meeting, as alleged, on September 13, 1958, and that he had not made any speech attributed to him in the said ground. He also denied that he had advocated in any meeting for the formation of a militia, as alleged. But he claimed that he had a right to express his views about the policy of the Government or the Prime Minister, relating to Pakistan and/or about nehru-Noon Pact or similar other Agreements. He denied that he indulged in any violent speeches, or that he tried to rouse passions. His further contention was that the ground No. 4 was extremely vague in the absence of any particulars about how, where and when and in what manner, he was likely to instigate any plan which was to adversely affect the personal security of the Prime Minister of India, and the nature or particulars of any such contemplated plan.

5. In his application to the High Court, the petitioner also submitted that the grounds supplied to him, had no rational connection with the objects mentioned in S. 3 of the Act, and that, therefore, he was deprived of his right to make an effective representation. He also alleged that he was a member of a political party opposed to the party in power, and held definitely pronounced views about the failure of Government to tackle the problem of refugees, as also about the relationship between the Government and the State of Pakistan. He also claimed to be a leader of the refugees, and as such, had been relentlessly criticising the policies of the present Government. He further asserted that the order of detention passed against him, was a clear case of political victimisation. He alleged further that the order of detention, on the face of it, was mala fide, and was a clear infringement of his fundamental right to freedom of speech and association, guaranteed by the Constitution.

6. On November 28, 1958, the petitioner was brought to the Writers’ Buildings in Calcutta, and placed before the Advisory Board as constituted under the Act. The petitioner was heard in person by the Advisory Board on that date, and on the next day, that is, November 29, 1958, after the hearing by the Advisory Board, another order, being order No. 1957 H. S., dated November 29, 1958, made by the Governor of West Bengal, was issued, confirming the aforesaid order of detention No. 83 dated October 7,1958, set out above, and continuing the petitioner’s detention till the expiration of 12 months from the date of detention. On these allegations, the petitioner submitted to the High Court that the orders aforesaid, relating to his detention in the Dum Dum Central Jail, were “illegal invalid ultra vires, void and inoperative”.

7. An affidavit in opposition, on behalf of the State of West Bengal and other opposite parties, was sworn to by the Commissioner of Police, Calcutta – opposite party No. 3 in the case. In the aforesaid affidavit, the deponent averred that he was satisfied on the records and materials placed before him that the petitioner was a person likely to act in a manner prejudicial to the maintenance of public order, and that with a view to preventing him from doing so, it was necessary to make the order of detention on the grounds mentioned in the Order No. 86 dated October 8, 1958 (set out above). He also averred that the orders of detention aforesaid, together with the grounds and all other relevant particulars, were reported by him to the Government of West Bengal, which, after duly considering the same, duly approved of the orders of detention. It was also stated in the affidavit that the petitioner personally appeared before the Advisory Board on November 28, 1958, and the Advisory Board, upon a consideration of the records and materials placed before it, and the representation made by the petitioner, and after hearing the petitioner in person, reported to the Government of West Bengal that in the opinion of the Advisory Board, there was sufficient cause for the detention of the petitioner. The Commissioner of Police further stated in the affidavit that he had duly passed and signed the orders of detention after considering the records and materials in respect of the petitioner, in exercise of the powers conferred under the Act, bona fide and without any malice whatsoever, on being satisfied about the necessity of the said orders of detention. He also stated that he denied all statements of facts to the contrary, contained in the affidavit in support of the petition; and he undertook to produce the original records in the Court at the hearing. Allegations of victimisation on political grounds, and that the order of detention was mala fide and in infringement of the fundamental rights of the petitioner, were specifically denied.

8. The matter was heard by a Division Bench of the Calcutta High Court (Guha Roy and N. C. Sen, JJ.), which, by its order dated January 8, 1959, discharged the Rule. In the course of its judgment, the High Court made the following observations:

“On a reading of the order, however, it is quite clear to us that paragraphs 1, 2, 3 and 4 do not state the grounds of the order. There is only one ground of the order and that is that the petitioner was acting in a manner prejudicial to the maintenance of public order and the remaining paragraphs of the order make it quite clear that what are stated in paragraphs 1, 2, 3 and 4 constitute different pieces of evidence by which the authority making the order came to the conclusion that the petitioner was acting in a manner prejudicial to the maintenance of public order and therefore should be detained under the Act.”

Hence, the High Court, on a construction of S. 3 of the Act, came to the conclusion that the grounds of detention in respect of the petitioner, were not vague, and that the statement in para. 4 of the detention order No. 85 dated October 8, 1958, quoted above was not a ground but only a piece of evidence out of several such pieces of evidence on which the ground of detention was based. It was further pointed out that paragraph 4 aforesaid, was not by itself a ground of the order, but merely an inference of fact which had some bearing on the ground of the order. The High Court also pointed out that there was no ambiguity in the recitals, including those in paragraph 4 aforesaid. In that view of the matter, the order of detention of the petitioner was upheld, and the Court further held that the question whether the whole order was bad on the ground that one of the grounds was too vague, did not arise in the case.

9. The petitioner moved the Calcutta High Court for a certificate that the case was a fit one for appeal to this Court. The Chief Justice of the High Court, delivering the order of the Division Bench of that Court granting the necessary certificate, observed that the view of the High Court that paragraph 4 aforesaid, was not a ground of detention but only one of the items of evidence in support of the ground, raised a serious question to be determined by this Court, particularly because a view contrary to the one taken by the High Court in the instant case, appeared to have been taken by this Court and by the Calcutta High Court itself in a number of decisions. That is how this appeal has come to this Court. Besides preferring the aforesaid appeal, the petitioner moved this Court under Art. 32 of the Constitution, praying for a writ in the nature of habeas corpus, and a Constitution Bench, by its order dated April 20, 1959 directed that this appeal be posted for hearing by a Constitution Bench, on May 11, 1959, on a cyclostyled paper book, an that the filing of the petition of appeal and the statements of cases be dispensed with. The court further ordered that the application under Art. 32 of the Constitution, be posted for hearing immediately after the criminal appeal. That is how both the matters have been placed one after the other for hearing before us.

10. The order under appeal takes the view that the various grounds of detention are stated in S. 3(1)(a) (i) (ii) (iii) and (b) of the Act, and that there can be no grounds apart from those. The High Court then, on a reading of the Order No. 85, set out above, has held that paragraphs 1, 2, 3 and 4 are not the grounds of detention, as contemplated by S. 3 of the Act, but that they only constitute different pieces of evidence by which the authority making the order came to the conclusion that the petitioner was acting in a manner prejudicial to the maintenance of public order, which was the only ground on which the order of detention in question was founded. The High Court was right in its literal construction of the order impugned in this case, which proceeds to recite the four numbered paragraphs, preceded by the introductory clause “as evidenced by the particulars given below.” But the case of State of Bombay vs. Atma Ram Shridhar, (1951) SCR 167, has laid it down that Cl. (5) of Art. 22 of the Constitution, confers two distinct though interrelated rights on the petitioner, namely, (1) the right to be informed of the grounds on which the order of detention has been made, and (2) the right to be enabled, at the earliest opportunity, to make a representation against the order. This Court further pointed out in that case, that the grounds which have a rational connection with the objects mentioned in S. 3, have to be supplied. As soon as that is done, the first condition of a valid detention is complied with. The second condition of such a detention is fulfilled only after the detenu has been supplied with such information as will enable him to make a representation. If the information supplied in order to enable a detenu to make a representation, does not contain sufficient particulars, the detenu is entitled to ask for further particulars which will enable him to make a representation. Therefore, if there is an infringement of either of the two rights, and any one of the two conditions precedent to a valid detention, as aforesaid, has not been fulfilled, the detenu has a right to approach this Court for a writ in the nature of habeas corpus. In other words, the grounds for making an order of detention, which have to be communicated to the detenu as soon as practicable, are conclusion of facts, and are not a complete recital of all the relevant facts. Therefore, the grounds, first is to say those conclusion of facts, must be in existence when the order of detention is made, and those conclusions of facts have to be communicated to the detenu as soon as may be.

11. This Court, and naturally, the High Courts, have, treated the recitals in the orders of detention, with particular reference to the several clauses and sub-clauses of S. 3 (1)(a) and (b) of the Act, as stating the object to be achieved in making the order of detention. The order of detention may also contain recitals of facts upon which it is based. If the order of detention also contains the recitals of facts upon which it is founded, no further question arises, but if it does not contain the recitals of facts which form the basis of the conclusions of fact, justifying the order of detention, then, as soon as may be (now, under S. 7, within a maximum period of five days from the date of detention), the person detained has to be informed of those facts which are the basic facts or the reasons on which the order of detention has been made. Section 3 of the Act requires the authority making an order of detention, to state the fact of its satisfaction that it is necessary to make the order of detention of a particular person; with a view to preventing him from acting in a manner prejudicial to one or more of the objects contained in clauses and sub-clauses of S. 3(1)(a) and (b) of the Act. Section 7 requires that the person detained should be communicated the grounds on which the order of detention has been made, so as to afford him the earliest opportunity to make a representation against the order, to the appropriate Government. The statement of facts contemplated by S. 7, would, thus, constitute the grounds, and not the matters contained in one or more of the clauses and sub-clauses under S. 3(1)(a) and (b) of the Act. Section 3 also requires that when an order of detention has been made, the State Government concerned has to be apprised of the order of detention as also of the grounds on which the order of detention has been made, together with such other particulars as have a bearing on the order and the grounds. And finally, after the order has been approved by the State Government, that Government, in its turn, has to report to the Central Government the fact of the detention, together with the grounds on which the order of detention had been made, and such other particulars as in the opinion of the State Government, have a bearing on the necessity for the order. Thus, on a consideration of the provisions of Ss. 3 and 7 of the Act, it may be observed that the detenu has to be served with a copy of the order passed by the authority contemplated by sub-section (2) of S. 3, containing, firstly, recitals in terms of one or more of the sub-clauses of clauses (a) and (b) of S. 3(1), which we may call the ‘preamble’, and secondly, the grounds contemplated by S. 7, namely, the conclusions of fact which have led to the passing of the order of detention, informing the detenu as to why he was being detained. If the grounds do not contain all the particulars necessary for enabling the detenu to make his representation against the order of his detention, he may ask for further particulars of the facts, and the authority which passed the order of detention is expected to furnish all that information, subject, of course, to the provisions of sub-s. (2) of S. 7; that is to say, the person detained shall not be entitled to the disclosure of such facts as the authority making the order, considers against public interest to disclose. Thus, the order of detention to be served upon the person detained would usually consist of the first two parts, namely, the preamble and the grounds, but it may also consist of the third part, namely, the particulars, if and when they are required or found to be necessary. But it has to be noted that the particulars referred to in sub-sections (3) and (4) of S. 3, would not be identical with the particulars which we have called the third part of the order. The State Government, as also the Central Government, would, naturally, be placed in possession of all the relevant facts and particulars on which the order of detention has been passed. But those particulars may contain such details of facts as may not be communicated, in public interest, to the person detained.

12. From what has been said above, it is clear that the High Court was in error in so far as it treated what we have called ‘the preamble’ as the grounds of detention contemplated by S. 7 of the Act. But this error, as will presently appear, has not affected the legality, propriety or correctness of the order passed by the High Court in the habeas corpus proceedings before it. The High Court, as already indicated, after making those observations which we have held to be erroneous, proceeded further to say that there was no ambiguity in the recitals of facts, as the High Court characterised them and which we have called the grounds.

13. The contention raised before the High Court has been repeated before us, that the grounds contained in para. 4, are vague and indefinite, not enabling the person detained to make his representation. It will appear from the paragraph aforesaid that the petitioner intended to proceed to Delhi on October 9, 1958, with a view to instigating plans against the personal security of the Prime Minister. It is clear that the place, date and purpose of the planned nefarious activity, have all been stated as clearly as could be expected. But it was argued that it was also necessary to state the details of the plan to be hatched in Delhi. There are several answers to this contention. Paragraph 4 has reference to something which was apprehended but lay in the womb of the future. From the nature of the fact that it was not an event which had already happened but what was apprehended to be in the contemplation of the detenu and his associates, if any, no further details of the plan could possibly be disclosed. As was observed in the decision of this Court in (1951) SCR 157 (supra), vagueness is a relative term. Its meaning must vary with the facts and circumstances of each case. What may be said to be vague in one case, may not be so in another, and it could not be asserted as a general rule that a ground is necessarily vague if the only answer of the detained person can be to deny it. If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannot be said that it is vague. Further, it cannot be denied that particulars of what has taken place, can be mare definitely stated than those of events which are yet in the offing. In the very nature of things, the main object of the Act is to prevent persons from doing something which comes within the purview of any one of the sub-clauses of cl. (a) of Section 3(1) of the Act.

14. It was next contended that some of the grounds at least are irrelevant. This was not said of the first paragraph of the grounds set out above. It was said of paras. 2, 3 and 4 that they are irrelevant to the main object of the order of detention, namely, the “maintenance of public order.” In our opinion, there is no substance in this contention either. All the statements in the four paragraphs of the grounds, which have to be read together as being parts of a connected whole, calling upon persons to “build up strong movement against the implementation of Nehru-Noon Pact,” and to “rouse passions by alleging that the Indian Prime Minister had no sympathy for West Bengal,” cannot be said to be wholly unconnected with the maintenance of public order. Similarly, denouncing the agreement between the two Prime Ministers and stressing the need of forming a militia with the youths of the country, cannot be said to have no repercussions on the maintenance of public order. And lastly, any instigation against the personal safety, of the Prime Minister of India cannot but have a deleterious effect on the maintenance of public order.

15. It was sought to be argued that any weak link in the chain of facts and circumstances, said to have been the basis of the order of detention, would affect the legality of the whole order. This argument postulates that there are any grounds which are either vague or irrelevant. In this connection, particular reliance was placed on the observations of this Court in Dwarka Dass Bhatia vs. State of Jammu and Kashmir, (1956) SCR 948, to the effect that if some of the reasons on which the order of detention had been based, are found to be non-existent or irrelevant, the Court ought to quash the order, because it is not in a position to know which of the reasons or the grounds, had operated on the mind of the authorities concerned, when they decided to pass the impugned order. As already pointed out, no such situation arises in this case, because, in our opinion, none of the grounds is either vague or irrelevant. It may also be pointed out that the ground of irrelevance was not urged before the High Court, but even so, we allowed the petitioner’s counsel to urge that ground before us, and having heard him on that aspect of the matter, we have no doubt that there is no justification for the contention that any of the matters taken into consideration by the authorities concerned in the matter of the detention of the petitioner, was irrelevant.

16. For the reasons given above, it must be held that there is no merit in this appeal or in the application under Art. 32 of the Constitution, They are, accordingly, dismissed.


DATE:-20-05-1959

Tarapada De and others Versus The State of West Bengal[SC 1951 January]

Keywords: Preventive Detention-subjective satisfaction

Capture

AIR 1951 SC 174 : (1951) SCR 212 : (1951) CriLJ SC 400

(SUPREME COURT OF INDIA)

Tarapada De and others Appellant
Versus
The State of WEST BENGAL Respondent

(Before : M. H. Kania, C.J.I., Saiyid Fazl Ali, M. Patanjali Sastri, B. K. Mukherjea, S. R. Das And N. Chandrasekhara Aiyar, JJ.)

Criminal Case No. 24 of 1950, Decided on : 25-01-1951.

Subjective satisfaction—Judicial review—Sufficiency of grounds for detention cannot be examined by the Court.

The sufficiency of the grounds, which gives rise to the satisfaction of the Provincial Government is not a matter for examination by the Court. The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the Court, but only from that point of view.

On the question of satisfaction, as has been often stated, one person may be but another may not be satisfied on the same grounds. That aspect, however, is not for the determination of the Court; having regard to the words used in the Preventive Detection Act.

Preventive detention—Grounds—Communication of—Requirement of communication “as soon as may be”—Delay in communicating the grounds on account of large number of persons detained and the State Government had to deal with large number of cases on one day—Communication of grounds after about two weeks did not violate Article 22(5) of the Constitution.

Preventive detention—Grounds—Additional grounds—Permissibility—Supplementary grounds communicated to the detenu after more than three months—The substance of grounds has to be looked into and the nomenclature of grounds as supplementary is not conclusive.

A description of the contents of the second communication as “supplementary grounds” does not necessarily make them additional or new grounds. One has to look at the contents to find out whether they are new grounds.

We do not think it proper to consider the true effect of the communication only by reading its opening words. The whole of it must be read and considered together. The contention that the authorities were not satisfied on the original grounds and therefore put forth this communication as the supplemental grounds is again unsound. The fact that these details were communicated later does not necessarily show that they were not within the knowledge of the authorities.

Preventive detention—Subjective satisfaction—Judicial review—Sufficiency of grounds for detention cannot be examined by the Court.

The sufficiency of the grounds, which gives rise to the satisfaction of the Provincial Government is not a matter for examination by the Court. The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the Court, but only from that point of view.

On the question of satisfaction, as has been often stated, one person may be but another may not be satisfied on the same grounds. That aspect, however, is not for the determination of the Court; having regard to the words used in the Preventive Detection Act.

Counsel for the Parties:

Shri Atul Chandra Gupta and Shri Sudhansu Sekhar Mukherjee. Senior Advocates, (Shri Arun Kumar Datta and Shri S. N. Mukherjea, Advocates, with them), instructed by Shri P. K. Chatterjee, Agent -for Appellants

Shri ,M. C. Setalvad , Attorney-General for India, (Shri B. Sen Advocate, with him), instructed by Shri P. K. Bose, Advocate for the State of West Bengal

The judgment of Kania C. J., Fazl Ali, Mukherjea and Chandrasnkhara Aiyar JJ. was delivered by

JUDGMENT

Kania, C. J—This is an appeal under Art. 132, Const. Ind, from the judgment of the .H, C. at Calcutta, which rejected the habeas corpus petns. of the applts. The detention orders under the Preventive Detention Act, 1950, in all cases were served on the applts, on 26-2-1950 and the grounds for the detention were served on 14-3-1950. By way of specimen we quote one of them:

“You are being detained in pursuance of a detention order made under sub-cl. (ii) of cl. (a) of Sub-section. (1) of S. 3, Preventive Detention Act 1950 (Act IV [4] of 1950), on the following grounds.”

(1) That you have been assisting the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Govt. under S.16, Indian Criminal Law Amendment Act (Act XIV [14] of 1908), and which has for its object commission of, rioting with deadly weapons, robbery, dacoity, arson and murder and possession and use of arms and ammunitions and explosives and thus acting in a manner prejudicial to the maintenance of public order and that it is necessary to prevent you from acting in such manner.

(2) That as a member of the C. P. I. on its Kishan front, you have fomented trouble amongst the peasants. of Howrah District and incited them to acts of lawlessness and violence:

and have thereby acted in a manner prejudicial to the maintenance of public order:

That as a worker of the C. P. I. you have tried to foment trouble amongst the tramways men and other workers at Calcutta and in speeches which you delivered at the University Hall and other places you actually incited them to resort to acts of violence and lawlessness; and have thereby acted in a manner prejudicial to the maintenance of public order.”

2. On 16-7-1950, the Govt. of West Bengal served on the applts. “in continuation of the grounds already furnished on 14-3-1950 supplementary grounds” for their detention a specimen of which is in the following terms:

“In continuation of the grounds already furnished under order No. 6163 H. S. dated 14-3-1950, you are being informed of the supplementary grounds for your detention which are its follows:

“You as the Secretary of the Bengal Chatkal Mazdoor Union as a member of the Executive Committee of the Federation of Mercantile Employees Union, as the honorary reporter of the ‘Khabar’ newspaper (C. P. I. organ) carried on the disruptive programme of the C. P. I. on 29-7-1948 you along with others led a procession at Howrah preaching discontent against Govt. and have been thus acting in a manner prejudicial to the maintenance of public order.”

3. As in the case of the first grounds, these “supplementary grounds” were served on each applt. separately. The applts, applied for a rule of habeas corpus separately under S. 491, Cr. P. C., and on 21-7-1950 the H. C. issued a rule in each case on the Chief Secretary to the Govt. of West Bengal, A second set of grounds were communicated to the applts. on the 22nd or 23rd of July 1950. A specimen of one is in the following terms:

“In continuation of the grounds already furnished under order No. 12820 dated14th(16th?) July 1950 you are being informed-of the supplementary grounds for your detention which are as follows:_

1. That in a meeting held at the University Institute on 19-3-1947 under the auspices of the Calcutta Tramway Workers Union, you held out the threat that any attempt to take out tram cars on 20-3-1947 would be inviting disaster and you further said that if the authorities tried to resume the tram service you and your friends would not hesitate to remove the tram lines and cut the wires.

2. That on 13-6-1948, you presided over a meeting under the auspices of the Student Federation (C. P. I. controlled) and delivered speech advocating withdrawal of ban on the Communist Party of India and its organ Swadhinta.”

4. The H. C. after considering the whole matter rejected the petns. of the applts. The applts have thereupon come in appeal before us.

5. In the H. C. it was first contended on behalf of the applts. that the communication of the grounds dated the 14th March was not a compliance with Art. 22 (5), Const. Ind. as those grounds were not communicated “as soon as may be. “ The H. C, rejected this contention. Under the circumstances of the case, we agree with the H. C. and are unable to hold that in furnishing the grounds dated14-3-1950 the authorities had failed to act in accordance with the procedure laid down in Art. 22 (5) of the Constitution. Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained. The validity of that Act was being challenged in the H. C. and the judgment was expected to be delivered towards the end of Feb. 1950. The Preventive Detention Act, 1950, was passed by the Parliament of India in the last week of Feb. 1950 and these orders on all those detenus were served on 26-2-1950. Having regard to the fact that the Provincial Govt. had thus suddenly to deal with a large number of cases on one day, we are unable to accept this contention of the applts.

6. On behalf of the applts. it was next argued that there has been a non-compliance with the procedure laid down in Art. 22 (5) of the Constitution and S. 7, Preventive Detention Act, in the manner of supplying grounds to the applts, resulting in not providing to the applts. the earliest opportunity to make a representation, which they had a right to make. In the judgment delivered to-day in case No. 22 of 1950*. we have discussed in detail the nature of the two rights conferred under Art. 22 (5). We have to apply those principles to the facts of this appeal for its decision.

7. When the authorities sent their second communication dated16-7-1950 to the applts. they described it as “in continuation of the grounds already furnished” and as the “the supplementary grounds for your detention’’. Relying on the wording of this communication it was argued that these were additional grounds which were furnished to the detenu and therefore, the procedure prescribed under Art. 22 (5) had not been followed. It was argued that the obligation to communicate grounds “as soon as may be’’ was absolute. The grounds for detention must be before the Provincial Govt. before they could be satisfied about the necessity for making the detention order. If the grounds before the detaining authorities on 26-1-1950 were only those which they communicated on the 14th of March, they cannot support the detention on additionaI grounds which were not before them on that day and which they set out in the second communication four months later. It was also contended that the foot of this communication showed that the authorities were not satisfied on the original grounds and had, therefore, put forth these supplementary grounds as an afterthought. In our opinion these arguments cannot be accepted. A description of the contents of the second communication as “supplementary grounds” does not necessarily make them additional or new grounds. One has to look at the contents to find out whether they are new grounds as explained in our judgment in Case No. 22 of 1950*. Examining the contents of the later communication in that way we find that they only furnish details of the second heads of the grounds furnished to the appropriate applt. on 14-3-1950 in respect of his activities. We are unable to treat them as new grounds and we agree with the H. C. in its conclusion that these are not fresh or new grounds. We do not think it proper to consider the true effect of the communication only by reading its opening words. The whole of it must be read and considered together. The contention that the authorities were not satisfied on the original grounds and therefore put forth this communication as the supplemental grounds is again unsound. The fact that these details were communicated later does not necessarily show that they were not within the knowledge of the authorities when they sent the communication dated the 14th of March. The contention that this communication of 16-7-1950 was not “as soon as may be”, has to be rejected having regard to the principles set out in our judgment in case No. 22 of 1950. The facts in each case have to be taken into consideration and if the detained person contends that, this part of the procedure prescribed in Art.22 (5) was not, complied with, the authorities will have to place materials before the Ct. to refute that contention. In the present case the H. C. has considered that there has been no infringement of this procedural law and we see no reason to come to a different conclusion.

8. It was next argued that the grounds being vague, they could not be considered as grounds at all and therefore they could not be sufficient “to satisfy” the authorities. On this point we have nothing to add to what we have stated in our judgment in Case No. 22 of 1950. We are unable to accept the contention that ‘vague grounds” stand on the same footing as ‘irrelevant grounds”. An irrelevant ground has no connection at all with the satisfaction of the Provincial Govt. which makes the order of detention. For the reasons stated in that judgment we are also unable to accept the contention that if the ground are vague and no representation is possible there can be no satisfaction of the authority as required under S. 3, Preventive Detention Act. This argument mixes up two objects. The sufficiency of the grounds, which gives rise to the satisfaction of the Provincial Govt. is not a matter for examination by the Ct. The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the Ct., but only from that point of view. We are, therefore, unable to accept the contention that the quality and characteristic of the grounds should be the same for both tests. On the question of satisfaction, as has been often stated, one person may be but another may non be satisfied on the same grounds That aspect, however, is not for the determination of the Ct; having regard to the words used in the Act. The second part of the inquiry is clearly open to the Ct. under Art. 22 (5). We are, therefore, unable to accept the argument that if the grounds are not sufficient or adequate for making the representation the grounds cannot be sufficient for the subjective satisfaction of the authority.

9. As regards the grounds furnished by the Govt. in each case in its first communication, it is sufficient to notice that while the first ground is common to all the applts, the second ground is different in most cases. The H. C. has considered the case of each applt. in respect of the communication dated 14-3-1950, sent to him. In their opinion those grounds are not vague. They have held that the procedural requirement to give the detained person the earliest opportunity to make a representation has not been infringed by the communication of the grounds of the 14th of March and by the subsequent communication made to the applts. in July. This point was not seriously pressed before us. After hearing counsel for the applt. we see no reason to differ from the conclusion at the H. C. on this point. The result is that the appeal fails and is dismissed.

10. Patanjali Sastri, J.—This appeal was heard along with case No. 92 of 1950. (The State of Bombay v. Atma Ram Sridhar (A. I. R. (38) 1951 S.C. 157) as the main question involved was the same. In the view I have expressed on that question in my judgment delivered today in that case, this appeal cannot succeed and I agree that it should be dismissed.

11. Das, J—The same important questions have been raised in this appeal by 100 detenus against an order of a Bench of the Calcutta H. C. as were raised by the detenu in the appeal of the State of Bombay in which judgment has just been delivered. One additional point raised in this appeal was that the fact that a large number of fresh order of detention were made “overnight” indicates bad faith on the part at the authorities, for the authorities could not have applied their minds to each individual case. I am unable to accept, this contention as correct The authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act of a particular kind it was necessary to make an order of detention against them under the local Acts. There being doubt as to the validity at the local Acts and the Preventive Detention Act having been passed in the meantime the question was to make a fresh order under the new Act. The minds of the authorities having already been made up as to the expediency of making an order of detention against them, an elaborate application of mind, such as is now suggested, does not appear to me to be necessary at all. I do not think there was any failure of duty on the part of the authorities which will establish bad faith on their part. In my view, for reasons stated in my judgment in the other appeal, there being as proof of any mala fides on the part of the authorities, no fundamental rights of the pettioners have been infringed. In the case of each of the detenus, apart from the common ground, there were one or more specific grounds of detention which are quite sufficient to enable the detenu concerned to make his representation. Therefore, the question of supplementary particulars does not arise at all. In my opinion the conclusions arrived at by Roxburgh J. were correct and well founded and therefore, this appeal should be dismissed.

The State of Bombay Versus Atma Ram Shridhar Vaidya [SC 1951 JANUARY]

Keywords: Preventive Detention

Capture

AIR 1951 SC 157 : (1951) SCR 167 : (1951) CriLJ SC 373

(SUPREME COURT OF INDIA)

The State of Bombay Appellant
Versus
Atma Ram Shridhar Vaidya Respondent

(Before : M. H. Kania, C.J.I., Saiyid Fazl Ali, M. Patanjali Sastri, B. K. Mukherjea, S. R. Das And N. Chandrasekhara Aiyar, JJ.)

Case No. 22 of 1950,   Decided on : 25-01-1951.

Subjective satisfaction—Scope of Judicial review—The grounds of detention cannot be challenged except on the ground of mala fides—The Court cannot sit in appeal over the grounds of detention to assess the sufficiency of the grounds or to come to a different conclusion.

The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government.

This is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Judicial review—The grounds of detention cannot be challenged except on the ground of mala fides—The Court cannot sit in appeal over the grounds of detention to assess the sufficiency of the grounds or to come to a different conclusion.

Judicial review—Vague grounds—Power of Court to ascertain—Scope of power.

Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the fonding that there is some connection, i.e., the ground by itself is not so convincingly irrelavant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the Court. On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court’s inquiry and subject to the Court’s decision.

Preventive detention—Grounds—Privilege from disclosure—Exercise of privilege must not come in conflict with the right of detenu to make effective representation against the order of detention.

While the Constitution gives the Government the privilege of not disclosing in public interest facts which it considers undesirable to disclose, by the words used in Art. 22(5) there is a clear obligation to convey to the detained person materials (and the disclosure of which is not necessary to be withheld) which will enable him to make a representation. It may be noticed that the Preventive Detention Act may not even contain machinery to have the representation looked into by an independent authority or an advisory board. Under these circumstances, it is but right to emphasize that the communication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be disclosed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation from the intention underlying Art. 22(5) of the Constitution.

Preventive detention—Grounds—Sufficiency of—The grounds of detention cannot be challenged except on the ground of mala fides—The Court cannot sit in appeal over the grounds of detention to assess the sufficiency of the grounds or to come to a different conclusion.

Preventive detention—Judicial review—Vague grounds—Power of Court to ascertain—Scope of power.

Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the fonding that there is some connection, i.e., the ground by itself is not so convincingly irrelavant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the Court. On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court’s inquiry and subject to the Court’s decision.

Preventive detention—Grounds—Additional grounds—Permissibility—Additional facts leading to same conclusions can be supplied to the detenu but facts leading to different conclusions constitute new grounds which cannot be relied to support the order of detention.

The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact data or it may not be convenient to get out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows some time after the first communication. As regards the contents of that communication, therefore, the test appears to be whether what is conveyed in the second communication is a statement of facts or events, which facts or events were already taken into consideration in arriving at the conclusion included in the ground already supplied. If the later communication contains facts leading to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are “new” grounds.

Preventive detention—Subjective satisfaction—Scope of Judicial review—The grounds of detention cannot be challenged except on the ground of mala fides—The Court cannot sit in appeal over the grounds of detention to assess the sufficiency of the grounds or to come to a different conclusion.

The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government.

This is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law.

Preventive detention—Judicial review—The grounds of detention cannot be challenged except on the ground of mala fides—The Court cannot sit in appeal over the grounds of detention to assess the sufficiency of the grounds or to come to a different conclusion.

Preventive detention—Grounds—Vague grounds—Permissibility—The grounds must be intelligible to enable a detenu to make effective representation against the order of preventive detention.

The grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall. These conclusions are the “grounds” and they must be supplied. No part of such “grounds” can be held back nor can any more “grounds” be added thereto. What must be supplied are the “grounds on which the order has been made” and nothing less. The second right of being afforded the “earliest opportunity of making is representation against the order” is not confined to only a physical opportunity by supplying paper and pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object.

Without getting information sufficient to make a representation against the order of detention it is not possible for the man to make the representation. Indeed, the right will be only illusory but not a real right at all. The right to receive the grounds is independent but it is thus intentionally bound up and connected with the right to make the representation. Although these two rights are thus linked up, the contingency of further communication between the furnishing of the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is not altogether excluded. One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenu there can be no addition to the grounds.

Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the footing that there is some connection, i.e., the ground by itself is not so convincingly irrelevant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the Court. On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court’s inquiry and subject to the Court’s decision.

Vague can be considered as the antonym of ‘definite’. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state : affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If, on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague.

Counsel for the Parties:

Shri M. C. Setalvad, Attorney-General for India, (Shri G. N. Joshi, Advocate, with him), instructed by Shri P. A. Mehta, Advocate for Appellant

Shri A. S. R. Chari and Bawa Shiv Charan Singh, Advocate, instructed by Shri V. P. K. Nambiyar, Agent for Respondent.

JUDGMENT

Kania, C. J— (On behalf of himself and Fazl Ali J., Mukherjea, J. and Chandrasekhara Aiyar J.)-This is an appeal from a judgment of the High Court at Bombay, ordering the release of the respt. who was detained in custody under a detention order made under the Preventive Detention Act 4 of 1950). The respondent was first arrested on 18-12-1948 under the Bombay Public Security Measures Act, 1947 (VI [6] of 1947), but was released on 11-11-1949. He was arrested again on 21-4-1950 under the Preventive Detention Act, 1950, and on 29-4-1950 grounds for his detention were supplied to him. They were in the following terms:”That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay.” The respondent filed a habeas corpus petition on 31-7-1950 in which, after reciting his previous arrest and release, in paras. 6 and 7 he mentioned as follows:

“(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi.

(7) On 20-4-1950, he returned to Bombay and was immediately arrested as stated above.”

He contended that the sole aim of the Govt. in ordering his detention was not the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All India Trade Union Congress. He contended that the ground is “delightfully vague and does not mention when, where, or what kind of sabotage or how the applicant promoted it.’’ He further urged that the ground gave no particulars and, therefore, was not a ground as required to be furnished under the Preventive Detention Act, 1950. He stated that the present appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant’s detention in any event was illegal and mala fide. When this petition was presented to the Court on 9-8-1950 it directed the issue of a notice to the Commissioner of Police. Pending the disposal of the Rule, on 26-8-1950 the Commissioner of Police sent a communication to the respondent as follows:

“In pursuance of S. 7, Preventive Detention Act, 1950 (IV [4] of 1950), and in continuation of my communication No. 227 dated 29-4-1950 the following further particulars are hereby communicated to you in connection with the grounds on which a detention order has been made against you under S. 3 (1) of the said Act:

That the activities mentioned in the grounds furnished to you were being carried on by you in Greater Bombay between January 1950 and the date of your detention ; and

In all probability you will continue to do so.

2. If, in view of the particulars now supplied, you wish to make a further representation on / against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent of Arthur Road Prison, Bombay.”

2. On 30-8- 1950 the Commissioner of Police filed an affidavit against the petition of the respondent in which it was stated that the objectionable activities were carried on by the applicant between the months of January 1950 and the date of detention. It further stated that in or about the month of January law there was a move for a total strike on the railways in India in the month of March 1950 and the applicant was taking prominent part to see that the strike was brought about and was successful. As a means to make the strike successful and bring about total cessation of work on all railways, the applicant and his associates were advocating sabotage on railways and railway property in Greater Bombay. He further stated that reliable materials were put before him of the respondent being engaged in such activities by experienced police officers. He added that although the railways strike in the month of March did not materialise, the idea of bringing about such strike as soon as convenient continued to be entertained and the present respondent was actively engaged in bringing about such a strike in the near future. He then stated that the disclosure of further facts relating to the activities of the detenu was against public interest. In para. 6 there was a specific denial that the respondent, after his release in November 1949, and till 20th April 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay.

3. When the matter came up before a Bench of the High Court the respondent’s petition was granted. In the judgment of the Court, Chagla C. J., observed:

“It is clear by reason of the view we have taken in several cases under S. 491 Criminal P. C. that this is not a ground which would enable the detenu to make a representation to which he is entitled both under the Act and under the Constitution.”

After noticing the affidavit of the Commissioner of Police, it was further observed:

“We appreciate the fact that after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was not and ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant’s detention. We have looked at this affidavit and we have also looked at the particulars furnished to us by Mr. Chudasama. If these particulars had been furnished at the time when the grounds were furnished on the 29th of April 1950, very likely we would have come to the conclusion that the grounds were such as would have led the detenu to know exactly what he was charged with and to make a proper representation.”

The judgment is, however, based on the following observation of the Chief Justice:

“A new and important question arises for our consideration; and that is whether it is permissible to the detaining authority to justify the detention by amplifying and improving the grounds originally furnished . . . The only grounds which we have to consider and which were furnished in the purported compliance of Art 22 (5) were the grounds furnished to the detenu on 29-4-1950; and if these grounds were not such as to enable the detenu to make a proper representation, then there was a violation of the fundamental right and a contravention of the statutory provisions. That violation and that contravention cannot be set right by the detaining authority by amplifying or improving the grounds already given. As we said before, the point of time at which we have to decide whether there was a compliance or not with the provisions of Art. 22 (5) is 29-4-1950 when the grounds were furnished, and not when further and better particulars were given on 26-6-1950.”

The learned Attorney-General, appearing for the appellant, has strenuously objected to this fine at approach.

4. As the question of vagueness of grounds for the order of detention and the question whether supplementary grounds could be furnished after the grounds were first given to the detenu have arisen in various High Courts, we think it right that the general principles should be properly appreciated. The Constitution of India has given legislative powers to the States and the Central Government to pass laws permitting preventive detention. In order that a legislation permitting preventive detention may not be contended to be an infringement of the Fundamental Rights provided in Part III of the Constitution, Art. 22 lays down the permissible limits at legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and as and when such requirements are not observed the detention, even if valid ab initio, ceases to be “in accordance with procedure established by law” and infringes the fundamental right of the detenu guaranteed under Arts. 21 and 22 (5) of the Constitution. In that way the subject of preventive detention has been brought into the chapter on Fundamental Rights. In the present case we are concerned only with cls. (5) and (6) of Art. 22 which run as follows:

22. “(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 cl. (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.”

5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers at preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short at legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section 3, Preventive Detention Act, therefore, requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (3) the maintenance of supplies and services essential to the community or …. it is necessary so to do, make an order directing that such person be detained. According to the wording of S. 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other at the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can he done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. It, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.

6. An order having been so permitted to be made, the next step to be considered is, has the detained person any say in the matter? In the chapter on Fundamental Rights, the Constitution of India, having given every citizen a right of freedom of movement, speech, etc. with their relative limitations prescribed in the different articles in Part III, has considered the position of a person detained under an order made under a Preventive Detention Act. Three things are expressly considered. In Art. 22 (5) it is first considered that the man so detained has a right to be given as soon as may be the grounds on which the order has been made. He may otherwise remain in custody without having the least idea as to why his liberty has been taken away. This is considered an elementary right in a free democratic State. Having received the grounds for the order of detention, the next point which is considered is, “but that is not enough; what is the good of the man merely knowing grounds for his detention if he cannot take steps to redress a wrong which he thinks has been committed either in belief in the grounds or in making the order.” The clause, therefore, further provides that the detained person should have the earliest opportunity of making a representation against the order. The representation has to be against the order of detention because the grounds are only steps for the satisfaction of the Government and on which satisfaction the order of detention has been made. The third thing provided is in cl. (6). It appears to have been thought that in conveying the information to the detained person there may be facts which cannot be disclosed in the public interest. The authorities are, therefore, left with a discretion in that connection under cl. (6). The grounds which form the basis of satisfaction when formulated are bound to contain certain facts, but mostly they are themselves deductions of facts from facts. That is the general structure of Art. 22, cls. (5) and (6) of the Constitution.

7. The question arising for discussion is what should be stated in the grounds. It is argued that whatever may be stated or omitted to be stated, the ground cannot be vague; that the Constitution envisages the furnishing of the grounds once and, therefore, there is no occasion for furnishing particulars or supplemental grounds at a later stage ; and that Art. 22 (5) does not give the detained person and right to ask for particulars, nor does it give the authorities any right to supplement the grounds, once they have furnished the same. In our opinion much of the controversy is based on a somewhat loose appreciation of the meaning of the words used in the discussion. We think that the position will be clarified if it is appreciated in the first instance what are the rights given by Art. 22 (5). The first part of Art. 22, cl (5) gives a right to the detained person to be furnished with “the grounds on which the order has been made” and that has to he done “as soon as may be.” The second right given to such person is of being afforded “the earliest opportunity of making a representation against the order.” It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made. By their vary nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions down from the available facts will shown in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall. These conclusions are the “grounds” and they must be supplied. No part of such “grounds” can be held back nor can any more “grounds” be added thereto. What must be supplied are the “grounds on which the order has been made” and nothing less. The second right of being afforded the “earliest opportunity of making a representation against the order.” is not confined to only a physical opportunity by supplying paper and pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Ordinarily, the “grounds” in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him, of course if the detenu is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. It is significant that the clause does not say that the “grounds” as well as details of facts on which they are based must be furnished or furnished at one time. The law does not prescribe within what time after the grounds are furnished the representation could be made. The time in each case appears deliberately unprovided for expressly, because circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights.

8. It thus appears clear that although both these rights are separate and are to be exercised at different times, they are still connected with each other. Without getting information sufficient to make a representation against the order of detention it is not possible for the man to make the representation. Indeed, the right will be only illusory but not a real right at all. The right to receive the grounds is independent but it is thus intentionally bound up and connected with the right to make the representation. Although these two rights are thus linked up, the contingency of further communication between the furnishing of the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is not altogether excluded. One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenu there can be no addition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of Art. 22 (5), as those grounds for the order of detention were not conveyed to the detained person “as soon as may be.”

9. This, however, does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact data or it may not be convenient to set out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows some time after the first communication. As regards the contents of that communication, therefore, the test appears to be whether what is conveyed in the second communication is a statement of facts or events, which facts or events were already taken into consideration in arriving at the conclusion included in the ground already supplied. If the later communication contains facts leading to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are “ new’’ grounds. In our opinion that is the more appropriate expression to be used. The expression ‘additional grounds’ seems likely to lead to confusion of thought.

10. The next point to be considered is the time factor. If a second communication becomes necessary, when should it be made ? Article 22 (5) lays down two time factors. The first is that the grounds should be supplied “as soon as may be.’’ This allows the authorities reasonable time to formulate the grounds on the materials in their possession. The time element is necessarily left indeterminate because activities of individuals lending to bring about a certain result may be spread over a long or a short period, or a larger or a smaller area, or may be in connection with a few or numerous individuals. The time required to formulate the proper grounds of detention, on information received, is bound to vary in individual cases. There is no doubt that no express words are used to suggest a second communication from the authority to the detained person. But having regard to the structure of the clause dealing with the two rights connected by the word “and”, and the use of the words “as soon as may be’’ and “earliest opportunity’’ separately, indicating two distinct time factors, one in respect of the furnishing of grounds and the other in respect of the making of the representation, the contingency of a second communication after the grounds are furnished, is not excluded. However, the second communication should not be liable to be charged as not being within the measure “as soon as may be.” Secondly, it must not create a new ground on which satisfaction of the Government could be suggested, to have been arrived at. In our opinion, if these two conditions are fulfilled, the objection against a later communication of details or facts is not sufficient to cause an infringement of the provision made in Art. 22 (5). The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenu to make a representation, i. e., to give him an opportunity to put forth his objections against the order of detention. Moreover, “the earliest opportunity” has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are founded could and should equally be conveyed to the detained person to enable him to make out his objections against the order. To put it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural right of the detained person under Art. 22 (5).

11. It was argued that under Art. 22 (6) the authorities are permitted to withhold facts which they consider not desirable to be disclosed in the public interest. It was argued that, therefore, all other facts must be disclosed. In our opinion that is not the necessary conclusion from the wording of Art. 22 (6). It gives a right to the detaining authority not to disclose such facts, but from that it does not follow that what is not stated or considered to be withhold on that ground must be disclosed and if not disclosed, there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclosure. They are given a special privilege in respect of facts which are considered not desirable to be disclosed in public interest. As regards the rest, their duty is to disclose facts so as to give the detained person the earliest opportunity to make a representation against the order of detention.

12. On behalf of the respondent, it was argued that if the grounds of detention are vague or insufficiently clear there will result a failure to give him the earliest opportunity to make a representation against the order of detention and that defect in its turn must affect the satisfaction on which the order of detention was made. It was argued that just as a ground which is completely irrelevant, and therefore, in law is no ground at all, could not satisfy any rational person about the necessity for the order, a vague ground which ‘ is insufficient to enable the detenu to make a representation would similarly make the order of detention based on it, void, In our opinion, this argument is unsound. Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the footing that there is some connection, i.e, the ground by itself is not so convincingly irrelevant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the Court. On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court’s inquiry and subject to the Court’s decision. The analogy sought to be drawn between a ground which can have no connection whatsoever with the order and a ground which on its face has connection with the order but is not definite in its statement, is clearly faulty. The extreme position, on the other hand, that there is no connection between the ground to be furnished and the representation to be made by the detained person under Art.21(5) is equally unsound, when the object in furnishing the ground is kept in mind. The conferment of the right to make a representation necessarily, carries with it the obligation on the ‘part ‘ the detaining authority to furnish i.e., materials on which the detention order was made. In our opinion, it is therefore that while there is a connection between obligation on the part of the detaining thority to furnish grounds and the right to the detained person to have an opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity.

13. The argument advanced on behalf of the respondent mixes up the two rights given under Art. 22(5) and converts it into one indivisible right. We are unable to read Art. 22 (5) in that way. As pointed out above, the two rights are connected by the word “and,…’ Furthermore, the use of the words “as soon as may be” with the obligation to furnish the grounds of the order of detention, and the fixing of another time limit, viz., the earliest opportunity, for making the representation, makes the two rights distinct. The second right, as it is a right of objection, has to depend first on the service of the grounds on which the conclusion i.e., satisfaction of the Government about the necessity of making the order, is based. To that extent and that extent alone, the two are connected. But when grounds which have a rational connection with the ends mentioned in S. 3 of the Act are supplied, the first condition is satisfied. If the grounds are not sufficient to enable the detenu to make a representation, the detenu can rely on his second right and if he likes may ask for particulars which will enable him to make the representation. On an infringement of either of these two rights, the detained person has a right to approach the Court and complain that there has been an infringement of his fundamental right and even if the infringement of the second part of the right under Art. 22 (5) is established he is bound to be released by the Court. To treat the two rights mentioned in Art. 22 (5) as one is neither proper according to the language used, nor according to the purpose for which the rights are given.

14. The contention that the grounds are vague requires some clarification. What is meant by vague ? Vague can be considered as the antonym of ‘definite.’ If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If, on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act, as generally suggested. In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention. It cannot be disputed that the representation mentioned in the second part of Art. 22(5) must be one which on being considered may give relief to the detained person.

15. The argument that supplementary grounds cannot be given after the grounds are first given to the detenu, similarly requires a closer examination. The adjective “supplementary” is capable of covering cases of adding new grounds to the original grounds, as also giving particulars of the facts which are already mentioned, or of giving facts in addition to the facts mentioned in the ground to lead to the conclusion of fact contained in the ground originally furnished. It is clear that if by “supplementary grounds” is meant additionalgrounds, i.e. conclusions of fact required to bring about the satisfaction of the Government, the furnishing of any such additional grounds at a later stage will amount to an infringement of the first mentioned right in Art. 22 (5) as the grounds for the order of detention must be before the Government before it is satisfied about the necessity for making the order and all such grounds have to be furnished as soon as may be. The other aspects, viz., the second communication (described as supplemental grounds) being only particulars of the facts mentioned or indicated in the grounds firstly supplied, or being additional incidents which taken along with the facts mentioned or indicated in the ground already conveyed lead to the same conclusion of the fact, (which is the ground furnished in the first instance) stand on a different footing. These are not new grounds within the meaning of the first part of Art. 22 (5). Thus, while the first mentioned type of “additional” grounds cannot be given after the grounds are furnished in the first instance, the other types even if furnished after the grounds are furnished as soon as may be, but provided they are furnished so as not to come in conflict with giving the earliest opportunity to the detained person to make a representation, will not be considered an infringement of either of the rights mentioned in Art. 22 (5) of the Constitution.

16. This detailed examination shows that preventive detention is not by itself considered an infringement of any of the fundamental rights mentioned in Part III of the Constitution. This is, of course, subject to the limitations prescribed in cl. (5) of Art. 22. That clause, as noticed above, requires two things to be done for the person against whom the order is made. By reason of the fact that cl. (5) forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid. While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make representation which obligations, as shown above, are correlated, there exists no express provision contemplating a second communication from the detaining authority to the person detained. This is because in several cases a second communication may not be necessary at all. The only thing which emerges from the discussion is that while the authorities must discharge the duty in furnishing grounds for the order of detention “as soon as may be” and also provide “the earliest opportunity to the detained person to make the representation,” the number of communications from the detaining authority to the detenu may be one or more and they may be made at intervals, provided the two parts of the aforesaid duty are discharged in accordance with the wording of cl. (5). So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenu mentioned in the clause. They may consist of a narration of facts or particulars relating to the grounds already supplied. But in doing so, the time factor in respect of the second duty, viz., to give the detained person the earliest opportunity to make a representation, cannot be overlooked. That appears to us to be the result of cl. (5) of Article 22.

17. In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order. Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention. In our opinion, this attitude is quite deplorable. We agree with the High Court of Bombay in its observation when it says:

“In all the matters which have come up before us we have been distressed to find how vague an unsatisfactory the grounds are which the detaining authority furnished to the detenu; and we are compelled to say that in almost every case we have left that the grounds could have been ampler and fuller without any detriment of public interest.”

While the Constitution gives the Government the privilege of not disclosing in public interest facts which it considers undesirable to disclose, by the words used in Art. 22 (5) there is a clear obligation to convey to the detained person materials (and the disclosure of which is not necessary to be withheld) which will enable him to make a representation. It may be noticed that the Preventive Detention Act may not even contain machinery to have the representation looked into by an independent authority or an advisory board. Under these circumstances, it is but right to emphasise that the communication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be disclosed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation from the intention underlying Art. 22 (5) of the Constitution. The result of this attitude of some detaining authorities has been that applying the tests mentioned above, several communications to the detained persons have been found wanting and the orders of detention are pronounced to be invalid.

18. Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is correct. We have already pointed out that the summary rejection by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenu when the grounds are first communicated, is not sound. We have indicated the circumstances and conditions under which the later communication may or may not be considered as falling within the purview of Art. 22 (5) of the Constitution.

19. In dealing with the position when the grounds were first communicated, the High Court held as follows:”This is not a ground which would enable the detenu to make a representation to which he is entitled both under the Act and under the Constitution.” In this case the later communication of 26-8-1950 was made after the respondent filed his petition and it appears to have been made to controvert his allegation that he was never in Bombay between January and April 1950, as alleged in his affidavit. After taking into consideration this communication it was observed by Chagla C.J, that if these particulars had been furnished on 29-4-1950 very likely the Court would have rejected the petition. The Court set the respondent free only because of its view that after 29th April no further communication was permissible. In our opinion, this view is erroneous. We think that on the facts of the present ease, therefore, the respondent’s petition should have been dismissed. We, therefore, allow the appeal.

20. Patanjali Sastri, J. – While I concur in the Order proposed by my Lord that this appeal should be allowed, I regret I find myself unable to agree with him on the true meaning and effect of Art. 22, cl. (5) which is reproduced in S. 7, Preventive Detention Act, 1950, (hereinafter referred to as “the Act”). Put shortly, the question that falls to be decided is:Is it within the competence of the Court to examine the grounds communicated to a person detained under the Act, with a view to see if they are sufficient in its opinion to enable him to make a representation to the detaining authority against the order and if they are not, to direct his release ?

21. It is now settled by the decision of the majority in A. K. Gopalan v. The State of Madras, 1950 S. C. R. 88, that Art. 21 is applicable to preventive detention except in so far as the provisions of Art. 22 (4) to (7) either expressly or by necessary implication exclude its application, with the result that a person cannot be deprived of his personal liberty, even for preventive purposes, “except according to procedure established by law”. Part of such procedure is provided by the Constitution itself in cls.(5) and (6)of Art. 22 which read as follows:

“(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 cl.(6) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.”

If this procedure is not complied with, detention under the Act may well be held to be unlawful. As it would then be deprivation of personal liberty which is not in accordance with the procedure established by law. The question accordingly arises as to what are the requirements of Art. 22 (6) and whether they have been complied with in the present case ?

22. On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be detained, namely, that (1) the grounds of his detention should be communicated to him as soon as may be, and (2) he should be given the earliest opportunity of making a representation against the order. As there is to be no trial in such cases, the right of making a representation affords, it is said, the only opportunity to the person detained to repeal the accusation brought against him and establish his innocence. It is the communication of the grounds of detention that is expected to give him notice of what he is to meet by making a representation. The grounds must, therefore, it is submitted, give sufficient indication of the nature and extent of the information on which action has been taken against him and must contain sufficient particulars of the time and place of the acts charged, so as to enable him to make his representation effective as far as it is in his power to do so. If the grounds are vague and do not disclose the substance of the information or which the detention has been based, there would be no real compliance with the procedure prescribed by Art. 22 (6), and the detention must, it is claimed be unlawful. In other words, the sufficiency of the grounds for the purpose of enabling the person detained to make an effective representation against the order of detention is, in every case, a justiciable issue.

23. It must now be taken as settled by the decision of this Court in Gopalan’s case, (supra), which on this point was unanimous, that S. 3 of the Act is constitutional and valid notwithstanding that it leaves it to the “satisfaction” of the executive government to decide whether action under the Act is to be taken or not against any particular person or persons. The learned Chief Justice pointed out (at p. 121) that action by way of preventive detention must be based largely on suspicion, and quoted the remark of Lord Finlay in Rex v. Helliday,’ (1917) A. C. 260, (86 L. J. K. B. 1119), that a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person. Dealing with a similarly worded provision of the Central Provinces and Berar Public Safety Act, 1948, the Federal Court declared in another unanimous judgment, that

“This language clearly shows that the responsibility for making a detention order rests upon the provincial executive as they alone are entrusted with the duty of maintaining public peace; and it would be a serious derogation from that responsibility if the Court were to substitute its judgment for the satisfaction of the executive authority and, to that end undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded. . . . The Court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquillity, for “satisfaction” in this connection must be grounded on material which is of rationally probative value” Machindar Shivaji v. The King, 1949 F. C. R. 827.

These decisions clearly establish, what indeed is plain from the nature of the treasure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, no recourse being permitted to a Court of Law by way of review or justification of such action except on allegations of mala fides or irrational conduct.

24. When the power to issue a detention order has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its “satisfaction”, which is a purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is open to the Court to examine the sufficiency of the same grounds to enable the person detained to make a representation, for be it noted, the grounds to be communicated to the person detained are the “ grounds on which the order has been made.” Indeed the logical result of the argument advanced by the respondent’s counsel would be to invalidate S. 3 of the Act in so far as it purports to make the satisfaction of the government the sole condition of a lawful detention, for, if cl. (5) of Art. 22 were to be construed as impliedly authorising a judicial review of the grounds of detention to see if they contain sufficient particulars for making a representation then, the subjective condition prescribed in S. 3 would be inconsistent with that clause and therefore void. When this was pointed out to counsel he submitted that the decision in Gopalan’s case, (supra) as to the constitutionality of S. 3 required reconsideration in the light of his arguments based on Art. 22, cl. (5). Although the clause was not then considered from this point of view it came in for a good deal of discussion in connection with S.14, of the Act and the present argument must, in my opinion, be rejected because it runs counter to that decision.

25. Apart from this aspect of the matter, I am not much impressed with the merits of the argument. While granting, in view of the structure and wording of cl. (5), that the grounds communicated to the person detained are to form the basis of his representation against the order. I am unable to agree with what appears to be the major premise the argument, namely, that cl. (5) contemplates an inquiry where the person detained is to be formally charged with specific acts or omissions of a culpable nature and called upon to answer them. As pointed out by Lord Atkinson in Rex v. Halliday, 1917 A. C. 260, (86 L. J. K. B. 1119), preventive detention being a precautionary measure, “it must necessarily proceed in all cases to some extent on suspicion or anticipation as distinct from proof,” and it must be capable of being employed by the executive government in sudden emergencies on unverified information supplied to them by their police or intelligence officers. If the Government, acting honestly and in good faith make an order being “satisfied” on such information, however, lacking in particulars, that a person should be detained in the public interest as they have been empowered by Parliament to do then all that Art. 22 (5) requires of them is to communicate as soon as may be the grounds which led to the making of the order to the person concerned, and to give him the earliest opportunity of making any representation which he may wish to make on the basis of what is communicated to him. If such communication is made and opportunity is given the detaining authority will have complied with the procedure prescribed by the Constitution, and the person under detention cannot complain that he has been deprived of his personal liberty otherwise than in accordance with the procedure established by law. I can find nothing in Art. 22, cl, (5) to warrant the view that the grounds on which the order of detention has been made must be such that, when communicated to the person detained they are found by a Court of law to be sufficient to enable him to make what the Court considers to be an adequate representation. The right to be produced before a Magistrate and to consult and be defended by a legal practitioner is expressly denied by the Constitution itself a person under preventive detention [vide Arts. 22 (1), (2) and (3)] and this Court held in Gopaln’s case, (supra) that there was nothing in the Constitution to entitle him to a hearing even before the detaining authority. All this underlines the executive character of the function exercised by the authority which does not in any way embark on a judicial or quasi-judicial inquiry. In such circumstance, the representation which the person detained is allowed to make to the Government, which is constituted the Judge in its own cause, cannot be assumed to be similar in scope or purpose to a defence against a formulated charge in a Court of law. The argument, therefore, that the right of making a representation should be made effective in the sense that the detenu should be enable to defend himself successfully if possible, and for that purpose, the detaining authority should communicate to him the necessary particulars on pain of having the order quashed if such particulars are not furnished, proceeds on a misconception of the true position.

26. Perhaps the most cogent reason for rejecting the argument is to be found in the language and provision of cl. (6) of Art. 22. “Nothing in cl. (5),” that is to say, neither the right to be informed of the “grounds” of detention not the right to make a “representation” shall “require” the detaining authority to disclose facts which the authority “considers” should not be disclosed in the public interest. In other words, cl. (5) should not be taken to import an obligation to provide particulars which the authority is given an absolute discretion to furnish or withhold. I cannot understand how it can be claimed, in the face of cl. (6), that it is incumbent on the executive government to communicate particulars which a Court of law considers necessary to enable the person detained to make a representation. It cannot be compulsory to furnish what the authority is given an uncontrolled power to decide to give or to refuse. The combined effect of cls. (5) and (6) is, to my mind, to require the detaining authority, to communicate to the person affected only such particulars as that authority and not a Court of law, considers sufficient to enable the said person to make a representation.

27. It is worthy of note that in the wellknown English case of Liversidge v. Anderson, 1949 A. C. 206, (1943-3 ALL E. R. 338) the existence of a similar privilege was regarded as a “very cogent reason;” for holding that the words “If the Secretary of State has reasonable cause to believe” did not raise a justiciable issue as to the existence of such cause as an objective fact. Viscount Maugham observed:

“It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest and that this privilege of the Crown cannot be disputed. It is not ad rem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain to those responsible in advising His Majesty in regard to the Order in Council and it constitutes in my opinion, a very cogent reason for thinking that the words under discussion cannot be read as meaning that the existence of reasonable case is one which may be discussed in a Court which has not the power of enacting the facts which in the opinion of the Secretary of State amount to reasonable cause’.”

28. There was considerable discussion as to the meaning of the words “grounds” and “representation’’ used in cl (5). These are words of very wide connotation and, in the view I have expressed, it is unnecessary to define them. It may, however, be noted that cls. (5) and (6) are not mutually exclusive in the sense that, when cl. (6) is invoked, cl. (5) ceases to be applicable. When, therefore, the detaining authority withholds the material fact under cl. (6) and communicates to the person detained the grounds of detention, which in that case must be necessarily vague, it would still be communicating to him the “grounds” on which the order has been made, and such representation as the person may wish to make on the basis of that communication would still be a “representation”, within the meaning of cl. (5). This shows that no precise connotation can be attributed to the terms “grounds” and “representation” as used in cl. (5), for in certain cases at least, the one can be vague and the other inadequate from the detenu’s point of view and, on a question of construction they need not be different in other cases.

29. It was suggested in the course of the argument that cl. (5) dealt with two distinct and independent matters namely, (1) the communication of the grounds of detention, and (2) the affording of an opportunity to make a representation against the detention, and that the grounds communicated need not have any necessary relation to the representation provided for. The right to make a representation, it was said, imported, by implication an independent obligation on the part of the authority to furnish the person detained with sufficient particulars and details of the accusation against him apart from and in addition to the obligation expressly imposed on the authority to communicate the grounds on which the order has been made for the reason that without such particulars no adequate or effective representation could be made against the order, and though the sufficiency of the grounds on which the order was based had been held not to be open to judicial examination, there was no reason why the sufficiency of the further communication implied in the provision for representation should not be justiciable. The different time-limits fixed for the performance of the duties imposed by cl. (5) on the detaining authority are said to support this argument. The construction suggested is, in my opinion strained and artificial and cannot be accepted. The collocation in the same clause of the right, to be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds communicated are to form the basis of the representation and indeed, are intended mainly, if not solely, for that purpose. To suggest that , apart from those grounds, and right of making, a representation imports, by necessary implication, a further obligation to give such details and particulars as would render that right effective is, in my opinion, not to construe the clause in its natural meaning but to stretch it by the process of implication, so as to square with one’s preconceived notions of justice and fair play. No support for this construction can be derived from the provision of distinct time limits for the communication of the grounds and the affording of opportunity for representation, as that can be explained by the different degrees of urgency required in the two cases. The grounds are to be communicated “as soon as may be” which means as soon as possible and imports a much higher degree of urgency than what is implied in affording the “earliest opportunity” which, I take it, means affording writing and communication facilities to the person under detention as soon as he is ready and desires to make the representation.

30. While cl. (5) does not allow the authority, after making the order of detention and communicating the grounds of such order, to put forward fresh grounds in justification of that order, I can find nothing in that clause to preclude the authority furnishing particulars or details relating to the grounds originally communicated, or the person under detention availing himself of such particulars and making a better or a further representation. Nor is there anything to prevent such person from asking for, or the authority from providing, further and better particulars of those grounds where it is in a position to do so. But the attempt in these and similar proceedings has always been not to secure the necessary particulars but to shift the arena of the contest to the Court which, as Lord Finlay remarked in the case already referred to, is the least appropriate tribunal for investigating what must largely be matters of suspicion and not proof and which, for that very reason, might afford the relief hoped for without being in possession of all the facts.

31. Reference was made to the decisions of several High Courts dealing with the necessity of furnishing particulars of the grounds of detention. But those decisions turned on the provisions of the various Provincial Public Safety Acts which were passed before the commencement of the Constitution and which, in most cases, specifically provided for the communication of particulars. Those decisions are of no assistance to the respondent as neither in Art. 22 nor in the Act is there any express provision that particulars of the grounds of detention should be given to the person detained.

32. Our attention was called to the decision of this Court in Ishwar Das v. The State, as an instance where this Court considered the grounds of detention to be vague and directed the release of the petitioner in that case from detention under the Act. As pointed out in the brief judgment in that case, no arguments were addressed on the point and the case was disposed of on the view prima facie supported by the decisions already referred to that, if the grounds were too general and vague to enable the person under detention to make a representation, he was entitled to be released. No value can, therefore, be attached to that decision as a precedent.

33. In the Course of the debate it was repeatedly urged that this Court should be jealous in upholding the liberty of the subject which the Constitution has guaranteed as fundamental right and must not adopt a construction, of Art. 22 (5) which would rob the safeguards provided therein of all their efficacy. I am profoundly conscious of the sanctity which the Constitution attaches to personal liberty and other fundamental rights and of the duty of this Court to guard against inroads on them by the legislature or the executive. But when, as has been stated, the Constitution itself has authorised preventive detention and denied to the subject the right of trial before a Court of law and of consulting or being defended by a legal practitioner of his choice, providing only certain procedural safeguards, the Court could do no more than construe the words used in that behalf in their natural sense consistently with the nature, purpose and scheme of the measure thus authorised, to ascertain what powers are still left to the Court in the matter. It is in this light that I have endeavoured to construe cl. (5) and, for the reasons indicated above, I have come to the conclusion that it is not the province of the Court to examine the sufficiency of the grounds for the purpose of making a representation, a matter left entirely to the discretion of the executive authority. An argument in support of the liberty of the subject has always a powerful appeal but the Court should, in my opinion, resist the temptation of extending its jurisdiction beyond its legitimate bounds.

34. Das, S. J.—This appeal from a decision of the Bombay High Court raises a very important question as to the sufficiency of the grounds of an order of detention under the Preventive Detention Act, 1950. The question depends, for its answer, on a correct interpretation of cls. (5) and (6) of Art, 22 of our Constitution which have been reproduced in S. 7 of the Act. A similar question has also been raised in another appeal filed in this Court by one hundred detenus from the decision of a Bench of the Calcutta High Court, being case No. 24 of 1950,. (Tarapada v. The State of West Bengal, AIR 1951 SC 174). As the view I have taken as to the true meaning and effect of the relevant provisions of the Constitution and of the Act has not commended itself to the majority of my colleagues. I express it with a certain amount of diffidence arising out of the high regard I have for their opinions.

35. Under S. 3 (1) (a) of the Act the authority concerned can make an order of detention only if he is satisfied that, with a view to preventing a person from acting in a manner prejudicial to one or more of the matters referred to in sub-cls. (i), (ii) and (iii) of cl. (a) an order should be made. What materials will engender in the mind of the authority the requisite satisfaction under S. 3 (1) of the Act will depend on the training and temperament and the habitual mental approach of the person who is the authority to make the detention order. The authority concerned may be a person who will not derive the requisite satisfaction except on very precise and full informations amounting almost to legal proof or he may be a person equally honest who will be so satisfied on meagre information which may appear to others to be very vague or even nebulous. If the authority is a person of the first mentioned type, then the “grounds” on which he will make the order will necessarily i.e. more precise and fuller in particulars than the “grounds” on which an order may be made by the authority who is a person of the second mentioned type. The “grounds” on which the authority who is it person of the first mentioned type makes an order of detention create no difficulty, for such grounds are quite pecise and ample, and, when communicated to the detenu, will clearly enable him to appreciate , the reasons for his detention and to make his representation. We are, however, concerned with the “grounds “ on which an order of detention may be made by the authority who is a person of the Second mentioned type who may derive the requisite satisfaction from the conclusions which he may draw from the available information, which may not be precise or ample but on which, having regard to his source of information, the authority may honestly feel safe to rely and to act. This last mentioned type of “grounds” will, in the following discussion, be referred to as “vague grounds.’’ The question for our decision is whether an order of detention made in good faith on such “vague grounds” is valid when it is made and whether, if valid when made, become invalid because these very grounds, when communicated to the detenu, are found to be insufficient to enable him to make a representation.

36. The first question urged by the learned counsel for the detenu is that an order of detention made upon grounds which are too vague to enable the detenu to make a representation against the order is bad ab initio. The argument is thus formulated. Article 22 (5) requires two things, namely, first, that the authority making the order of detention shall, as soon as may be, communicate to the detenu the grounds on which the order has been made and, secondly, that the authority shall afford him the earliest opportunity to make a representation against the order. The two requirements are correlated. The object of the communication of the grounds, according to the argument, is to enable the detenu to make a representation against the order of detention and the combined effect of the two constitutional requirements is that the grounds on which the order is made must be such as will, when communicated to the detenu, enable him to make a representation. If the grounds communicated are too vague being devoid of particulars, then no representation can be made on the basis of them and if no representation can be made on the basis of these grounds, no order of detention could properly have been made on those grounds, for it is the grounds on which the order had been made that have to be communicated to the detenu so as to enable him to make a representation. The argument, shortly put, is that the implied requirement that the grounds must be such as will enable the detenu to make a representation also indicates the quality or attribute of the grounds on which the order of detention may be made. Whether the grounds satisfy the requirements of Art. 22 (5) is not left to the subjective opinion of the authority which makes the order of detention but an objective test is indicated, namely, that the grounds must be such as will enable the detenu to make a representation which quite clearly makes the matter justiciable. If the Court finds that no representation may be made on account of the vagueness of the grounds, the Court must also hold that the order made on such vague grounds cannot be sustained. The next step in the argument is that the provisions of the Preventive Detention Act, 1950 (Act IV [4] of 1950), which was passed after the Constitution came into effect must be read in the light of Art. 22 (5) as construed above. So read, the satisfaction of the authority referred to in S. 3 of the Act cannot be the subjective satisfaction of the authority, for the satisfaction must be founded on grounds which, when communicated later on, will enable the detenue to make a representation which postulates an objective test. This involves that S. 3 (1) (a) of the Act should be read as if the words “on grounds which when, communicated to him, will enable him to make a representation such as is mentioned in S. 7 of this Act’’ occurred after the words ‘if satisfied with respect to any person” and before the words “that with a view.” If such interpolation of words be not permissible according to accepted canons of construction then it must be held that in so far as S. 3 of the Act makes an order of detention dependent on the subjective satisfaction of the authority, the section is unconstitutional, being repugnant to the provisions of Art. 22 (5) and the necessary intendment thereof. The argument so formulated is attractive but on closer scrutiny will be found to be unsound. Before the Constitution came into force, there were laws for the maintenance of public security in almost all the provinces and in those laws there were provisions similar to the provisions of S. 3, Preventive Detention Act, 1950. It was hold in many cases that in the absence of bad faith and provided the grounds on which the authority founded its satisfaction had a reasonable relation or relevancy to the object which the legislation in question had in view, the satisfaction of the authority was purely subjective and could not be questioned in any Court of law. The decision of the Federal Court in Mechindar Shivaji v. The King, 1949 F.C.R. 827 is one of such decisions. Vagueness of the grounds on which satisfaction of the authority is founded cannot be treated as on the same footing as the irrelevancy of the grounds, unless the vagueness be such as may, by itself, be cogent evidence in proof of bad faith. If the grounds are relevant to the objects of the legislation and if there is no proof of bad faith, then mere vagueness of the grounds cannot vitiate the satisfaction founded on them. The satisfaction being subjective, the Court cannot arrogate to itself the responsibility of judging the sufficiency or otherwise of the grounds. It is true that at the time those decisions were given the Constitution had not come into force and there were no fundamental rights, but these well established principles were recognised and adopted by all members of this Court in Gopalan’s case, (supra) which came up for consideration after the Constitution had come into force. In that case it was held unanimously that under S. 3, Preventive Detention Act, 1950, the satisfaction of the authority was purely subjective and could not, in the absence of proof of bad faith, be questioned at all and that S. 3, was not unconstitutional. It is true that the arguments now advanced were not advanced in exactly the same form on that occasion, but that fact makes no difference for the arguments have no force as they are founded on the assumption that the grounds on which an order may be made must be such as will, when communicated, be sufficiently full and precise so as to enable the detenu to make a representation. I find no warrant for such an assumption. Indeed, the fact that this Court has held that S. 3 of the Act which makes the satisfaction of the authority a purely subjective matter is not unconstitutional clearly destroys the cogency of the argument formulated as herein before stated. The decision in Gopalan’s case, (supra) as to the validity of S. 3 of the Act makes it impossible to accept this argument.

37. It is next urged that even if the initial order was not invalid when made because satisfaction was a purely subjective-matter for the authority alone and the Court cannot consider or pronounce upon the sufficiency of the grounds on which the satisfaction was based, nevertheless, the continuance of the detention becomes unlawful if the same grounds when communicated, be found to be vague and devoid of particulars so as to render the making of a representation by the detenu somewhat difficult. The argument is that although the vagueness of the grounds is not justiciable at the initial stage when the order is made and so the order cannot be said to be invalid ab initio, the same vagueness of the ground is nevertheless justiciable at the later stage when they are communicated, so that if vagueness renders the making of a representation difficult the continuance of the detention at once becomes illegal. Under Art. 21 no person can be deprived of his life or personal liberty except according to procedure established by law. As explained in Gopalan’s case, (supra) procedure established by law means procedure enacted by the Legislature, i. e., State-made procedural law and not any rule of natural justice. It was pointed out that the implication of that Article was that a person could be deprived of his life or personal liberty provided such deprivation was brought about in accordance with procedure enacted by the appropriate Legislature. Having so provided in Art.21, the framers of our Constitution proceeded to lay down certain procedural requirements which, is a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived of his life or personal liberty. Those requirements are set forth in Art. 22 of the Constitution. A perusal of the several clauses of that Article will show that the constitutional requirements of procedure which must be incorporated in any law for preventive detention relate to a stage after the order of detention is made under S. 3, Preventive Detention Act, 1950. The order of detention being thus in accordance with procedure enacted by law which is not inconsistent with any, of the provisions of Part III of the Constitution applicable to that stage the order of detention cannot be questioned unless there is proof of bad faith, either direct or indirect. We have, therefore, to consider whether the detention validly brought about becomes unlawful by reason of subsequent non-compliance with the procedural requirements laid down in cl. (51 of Art. 22, for if there is such non-compliance, the detenu from that moment must be held to be deprived of his liberty otherwise than in accordance with procedure established by law and will, therefore, be entitled to be released.

38. I am prepared to concede that there is some correlation between the two parts of Art.12 (5) namely, the communication of the grounds on which the order has been made and the making of the representation by the detained person. The Constitution insists on the communication of the grounds on which the detention order has been made for some purpose. That purpose obviously is to apprise the detenu of the reasons for the order of his detention. The communication of the grounds will necessarily enable him, first, to see whether the grounds are at all relevant to the object sought to be secured by the Act. If they are not, then they were no grounds at all and no satisfaction could be founded on them. The very irrelevancy of the grounds will be a cogent proof of bad faith on the part of the authority so as to make the order itself invalid. In the next place, the disclosure of the grounds will tell the detenu in which class his suspected activities have been placed and whether he is entitled to the benefit of having his case scrutinised by the Advisory Board. Finally, the communication of the grounds on which the order has been made will tell him generally the reasons for his detention, and will, therefore, be helpful to the detained person in making his representation which is also provided for in the latter part of cl. (5). The fact that there is correlation between the two parts of cl. (5) does not, however, carry us any further. There is no warrant for assuming that the grounds to be communicated to the detenu are to be a formal indictment or a formal pleading setting forth a charge or a case with meticulous particularity nor is there any warrant for the assumption that the representation has to be in the nature of a defence or written statement specifically dealing with the charge or the case. Indeed, the idea of a trial is foreign to the law of preventive detention. The very fact that the provisions of cls. (1) and (2) of Art. 22 do not apply to preventive detention clearly excludes the idea of a trial before a tribunal. As I have said, the grounds will generally indicate the conclusions drawn by the appropriate authority with respect to the suspected activities of any particular person and those grounds, when communicated, will enable the detenu to make a representation, for he can easily refer to and set forth his real activities and represent that all his activities are innocent and cannot possibly give rise to the suspicion indicated in the grounds. To say that cl.(5) itself indicates that the grounds must be such as will enable the detenu to make a representation is to read into cl. (5) something which is not there. It is a re-statement of the first argument in a new form and is fallacious. In the first place, cl. (5) does not in terms say that the authorities shall communicate such grounds as will enable the detenu to make a representation. In the second place, the decision in Gopalan’s case, (supra) militates against this argument, for, if the sufficiency of the grounds is not justiciable at the initial stage when the order is made, as held in that case, it is wholly illogical to say that the intention of the Constitution is to make the sufficiency of the same grounds justiciable as soon as they are communicated to the detenu. As already stated, an order made upon satisfaction founded on vague grounds is quite valid, if the vagueness is not proof of bad faith. Under cl. (5) the authority is to communicate the grounds on which the order has been made. This will let the detenu know what operated in the mind of the authority when it made the order. If the grounds were vague it is the vague grounds that must be communicated, for it was upon those vague grounds that the order had been made. That is the express provision of the first part of cl. (5). This being the express requirement the implication that the grounds communicated must be sufficient to enable the detenu to make a representation cannot be read into the clause, for that will militate against the express requirement. If the order had been made on vague grounds but the authority is to communicate precise and well-formulated grounds which will be sufficient for the detenu to make a representation, then the communication will not be of grounds on which the order was made but of something more than what is expressly required. The express provision must excluded such an inconsistent implied provision. Again, cl. (6) of Art. 22 gives the authority the right to claim privilege against disclosure of facts in public interest. Non-disclosure of facts will necessarily make the grounds, as communicated, extremely vague and devoid of particulars. If the construction of cl. (5) which is contended for by the detenu’s counsel were correct, then the vagueness of the grounds resulting from the non-disclosure of facts under cl. (6) will entitle the detenu to be released, for that vagueness also will render the making of a representation impossible or difficult. That will mean that the claim of privilege given to the authority by cl.(6) of Art. 22 is wholly meaningless and ineffective, and will defeat its very purpose for the privilege cannot be claimed except at the peril of releasing the detenu. Obviously that cannot be the intention. It must, therefore, be held that the vagueness of grounds resulting from non-disclosure of facts under cl. (6) will not invalidate the order of detention, which was initially valid, on the ground that no representation can be made on the basis of such vague grounds. In that case by claiming privilege under cl. (6), the authority can frustrate the claim of justiciability of the sufficiency of the grounds. Further, why should the vagueness of grounds otherwise brought about stand on a different footing? Clause (5) cannot mean one thing when the privilege is claimed and mean quite the opposite thing when no such privilege is claimed under cl.(6). The initial order is not justiciable. The claim of privilege is not justiciable. Why should it be assumed that the sufficiency of grounds for the purpose of making a representation was intended to be justiciable? I see no logical reason for making an assumption which will introduce an objective test in a matter which is prima facie intended to be purely subjective.

39. The argument is then re-stated in the following further modified form. Clause (5) of Art. 22 imposes two obligations on the authority making an order of detention, namely, (i) that the authority shall, as soon as may be, communicate the grounds on which the order has been made and (ii) that the authority shall afford the earliest opportunity to the detenu to make a representation against the order. If the order was made as a result of satisfaction derived in good faith but upon grounds which may be vague, the order will be perfectly good and cannot be challenged in any Court. Communication of such grounds, even if they are vague, will satisfy the first obligation imposed upon the authority. Under the latter part of cl.(5),the authority is also under the obligation to afford the earliest opportunity to the detenu to make representation. If the grounds on which the order has been made were vague, then the second part of cl.(5), independently and without reference to the first part of cl.(5), impliedly imposes on the authority an obligation to rectify the defect of vagueness by supplying particulars so as to enable the detenu to make a representation. Supplying of particulars, the argument concludes, is implicit in the second part of cl.(5), for without such particulars the detenu is not afforded the opportunity to make o representation. I am unable to accept this line of argument. Under the first part of cl. (5) the grounds on which the order has been made have to be supplied ‘as soon as may be’. The measure of time indicated by the words ‘as soon as may be’ must obviously run from the date of detention. Likewise the latter part of cl. (5) requires affording the detenu the earliest opportunity to make a representation. From what terminus a quo is the period indicated by the phrase ‘earliest opportunity” to begin to run? If that is also to run from the date of the detention, then the two periods under the two parts of cl. (5) must necessarily coincide and, therefore, the question of supplying further particulars after the grounds are supplied cannot arise. On the other hand, the natural meaning of the words of the latter part of cl. (5), to my mind, is that the period connoted by the phrase the “earliest opportunity” begins to run from the time the detenu expresses his desire or intention to make are presentation. The making of a representation is the right of the detenu. To make or not to make a representation is his choice. Therefore, it is only when he decides to make a representation and expresses his desire or intention to make a representation that the earliest opportunity is to be afforded to him to make the desired or intended representation. Now, if the time is to run after the expression of desire or intention on the part of the detenu to make a representation, then the earliest opportunity to be afforded to the detenu can only mean affording him all physical facilities to carry out his desire or intention, for the detenu has decided to make his representation without any further particulars. According to the language used in the latter part of cl. (5), there is no express provision for supplying particulars. Suppose the grounds on which the order was made and which were communicated to the detenu under the first part were quite precise and sufficient to enable the detenu to make a representation, then affording him the earliest opportunity to make the representation can only mean giving him all physical facilities to do so, e.g., by supplying him with paper, pen and ink and when the representation has been drawn up by him by forwarding the same with due despatch. In such a case there is no question of supplying further and better particulars. Suppose, again, that the grounds on which the order has been made and which have been communicated to the detenu are regarded by the authority to be quite precise and sufficient for making a representation, is the authority to anticipate that the detenu may find these grounds insufficient or that being moved in that behalf the Court may consider them insufficient and then, as soon as the detenu expresses his desire or intention to make a representation, is the authority to keep quiet and take the risk of the Court releasing the detenu for the vagueness of the grounds or is he to tell the detenu “just wait a little; I think the grounds which I have communicated to you are quite precise and sufficient; lest you or the Court find the grounds insufficient for making a representation, I shall supply you with further and better particulars so as to enable you to make the representation” ? The position thus stated is unreal on the face of it. In my opinion, on a plain reading of cl. (5), there is no justification for assuming that a second communication of particulars is contemplated either under the first part or under the second part of cl. (5). This does not, however, mean that the authority may not supply particulars either suo motu, or on the application of the detenu. All that I say is that cl. (5) imposes no constitutional obligation on the authority to supply particulars so as to remove the vagueness of the grounds or to enable the detenu to make a representation and non supply of further particular does not constitute an infraction of any fundamental right.

40. It is said that cl. (5) of Art. 22 construed in the way suggested above, would render that clause nugatory for it will then really guarantee no fundamental right at all. I respect. fully differ from this view for the criticism does not appear to me to be well founded. Communication of the grounds, even if vague, will none the less be helpful to the detenu in the several ways I have already mentioned and, therefore, the right to have the grounds on which the order has been made communicated to him is a valuable right which has been recognised as a fundamental right. Likewise, the right to make a representation is a valuable right which is guaranteed by our Constitution. These rights remain unaffected. If the provisions of cl. (5) of Art. 22 of the Constitution on a correct interpretation thereof are found to be inadequate for the protection of the liberty of the detenus it is their misfortune. The Constitution which the people have given unto themselves is the supreme law and must be upheld and obeyed whether or not one likes its provisions, inhibitions and necessary implications. The Court can only draw the attention of the Parliament to the lacuna or defect, if any, in the Constitution and in the Act so that the lacuna may be supplied or the defect remedied in the constitutional way.

41. Our attention has been drawn to a number of cases where under various provincial laws and before the Constitution the different High Courts have directed the release of the detenu on the basis of the vagueness of the grounds. Those decisions are, however, distinguishable because they were based on legislation which required the communication not only of grounds but also of particulars. The omission from our Constitution of the provision for communicating the particulars in addition to the grounds which were to be found in those laws is significant for it may be deliberate. Apart from this, however, those decisions do not appear to me to have any bearing on the correct interpretation of our Constitution or of the Preventive Detention Act., In Iswar Das v. The State the question was not raised or argued as it was made clear in the judgment itself. . .

42. In view of what I have stated above, I am of the opinion that as the grounds originally communicated to the detenu were relevant to the objects which the Act had in view and as there is, no proof of mala fides, the obligations cast upon the authorities under Art, 22 (5) which have been reproduced in S. 7, Preventive Detention Act, have been fully complied with. Even according to the views expressed by the majority of the colleauges I world be prepared to hold that the particulars subsequently supplied along with the grounds originally supplied fully enable the detenu to make his representation. In my opinion, there has been no contravention of the fundamental rights of the detenu. I would, therefore, allow this appeal and reverse the decision of the Bombay High Court.