Sadhu Singh Vs. Delhi Administration
 INSC 138 (1 June 1965)
01/06/1965 SHAH, J.C.
CITATION: 1966 AIR 91 1966 SCR (1) 243
R 1967 SC 908 (9) O 1967 SC1507 (8) RF 1968
SC 327 (1,8) F 1974 SC2249 (6)
Defence of India Rules, 1962, Rules 30(1),
30-A(6)(b), 30A(8)-Review of order of detention within six months-Order of
review whether quasi-judicial-opportunity to detenu to make representation
The petitioner was detained under an order of
detention passed by the District Magistrate of Delhi under r. 30(1) of the
Defence of India Rules, 1962 on 5th September, 1964.
The order was confirmed by the Administrator
under r. 30A6(b) on the same date,. Within six months i.e. on February 24,
1965, the Administrator reviewed the order under r. 30A(8) and confirmed it.
The petitioner thereafter filed a petition under Art 32 of the Constitution
praying for a writ of certiorari quashing the order under r. 30-A(8). In
support of the petition it was urged that (1) Even if the proceedings under r.
30(1) and r. 30A6(b) may be purely administrative, a proceeding for review
under r. 30A(8) is quasi-judicial in character. (2) An order of review involves
judicial consideration of the facts on which the original detention order was
based in the light of subsequent developments including change of views on the
part of the detenu, and this cannot be effectively made unless the detenu is
afforded an opportunity to make a representation.
(3) Every order made by a public authority
which affects the rights of an individual must of necessity be preceded by a
quasi-judicial determination of the question on the determination of which the
order may be made, and a determination made contrary to the rule of natural
justice is liable to be struck down by order of a competent court.
(4) The use of the word 'decide' in cl. (8)
of Rule 30-A implies the existence of a lis between the State and the detenu
relating to the right of the State to continue to detain him after the period
of six months contemplated by the statute. (5) The Administrator had reviewed
his own order under s. 30-A6(b) and not the order under r. 30(1) and thus there
was no compliance with r. 30-A(8).
HELD : (i) It was not open to this Court to
review the order under r. 30A(8). Making of an order of detention proceeds upon
the subjective satisfaction of the prescribed authority in the light of the
circumstances placed before him or on his coming to know that it is necessary
to detain the person concerned with a view to preventing such person from
acting in any manner prejudicial to the defence of India or civil defence, the
maintenance of public order etc. If that order is purely executive and not open
to review by the Courts, a review of the very circumstances in which the order
was made in the light of the circumstances since the date of that order cannot
but be regarded as an executive order. [248 FH] (ii)There is no provision in
the statute that the reviewing authority must before making the order under r.
30A(8) give an opportunity to the detenu to make a representation and no such
safeguard is implicit in the scheme of the statute.
[249 C] A writ of certiorari lies whenever a
body of persons having legal authority to determine questions affecting the rights
of subjects and having 2 44 the duty to act judicially act in excess of their
legal authority; it does not lie to remove or adjudicate upon the order which
is of an administrative or ministerial nature.
[249 D] Province of Bombay v. Kusaldas S.
Advani and Ors.  S.C.R. 621, relied on.
(iii)There is no principle or authority in
support of the view that whenever a public authority is invested with power to
make an order which prejudicially affects the rights of an individual whatever
may be the nature of the power exercised, whatever may be the procedure
prescribed and whatever may be the nature of the authority conferred, the
proceedings of the public authority must be regulated by the analogy of rules
governing judicial determination of disputed questions. [253 C-D] Ridge v.
Baldwin and Ors. L.R.  A.C. 40, explained.
Rex v. Electricity Commissioner, Ex parte
London Electricity Joint Committee Company,  1 K.B. 171, Rex v.
Legislative Committee of the Church Assembly,
Ex Parte Haynes-Smith,  1 K.B. 411 and Nakkuda Ali v. Jayaratne 
A.C. 66, referred to.
(iv)The word 'decide' used in r. 30-A(8) does
not make the order under that rule judicial. [253 E] Observations of Fazl Ali
J. as to the import of the word 'decision' in Advanis case relied on.
(v)The second paragraph of the order of the
administrator made it clear that the detention order of the petitioner would
continue and that detention order was clearly the order made by the District
Magistrate and confirmed by the Administrator. There was no substance in the
contention that the Administrator bid reviewed the order confirming the order
of detention and not the order of detention. It is difficult to divorce the
order of detention from the order confirming it, for without confirmation the
order of detention would have no legal sustenance. [254 D-E]
ORIGINAL JURISDICTION : Writ Petition No. 43
Writ Petition Under Art. 32 of the
Constitution of India for enforcement of fundamental fights.
R. K. Garg and S. C. Agarwala, for the
R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by
Shah, J. In exercise of the powers conferred by Rule 30(1) of the Defence of
India Rules, 1962, the District Magistrate, Delhi ordered that the petitioner
be detained in the Central Jail, New Delhi. On September 11, 1964 the District
Magistrate informed the petitioner that the Administrator, Union Territory of
Delhi, -hereinafter called 'the Administrator-had reviewed the detention order,
dated September 5, 1964, and had confirmed the same. On April 12, 1965 the
petitioner moved this Court for an "order setting aside his
detention" and for an order for his release. He submitted, inter alia,
that the District Magistrate had made the 245 order for a collateral purpose;
that there was nothing on the record to show that the District Magistrate
reported forthwith the detention of the petitioner to the Administrator, or
that the Administrator had reviewed the detention of the petitioner as required
by law; and that in default of a "proper review" of the detention
order by the Administrator under Rule 30-A (8) of the Defence of India Rules,
1962, detention of the petitioner after six months from the date of the
original order was unauthorised.
The District Magistrate, Delhi swore an
affidavit that he had carefully considered the materials placed before him and
on being satisfied that the petitioner "was indulging in anti-social
activities", and that the activities of the petitioner were prejudicial to
the maintenance of public order, and that it was necessary to detain the
petitioner, he made an order that the petitioner be detained; that the fact of
detention was forthwith reported to the Administrator; that the Administrator
had confirmed the order of detention of September 5, 1964, and that the
Administrator had also within six months from the date of detention reviewed
that order and had decided on February 24, 1965, to continue the detention of
By order, dated April 28, 1965, this petition
was directed to be heard during the vacation and accordingly it was placed
before me for hearing on May 18, 1965. On that day, the petitioner filed an
argumentative affidavit in rejoinder without setting out any facts,
controverting the statements made by the District Magistrate.
In support of the petition, counsel urged
that the detention of the petitioner was without authority because the
Administrator had confirmed the order under Rule 30-A(6) (b) of the Defence of
India Rules without taking into account all the circumstances which had a
bearing upon the order of detention passed by the District Magistrate, and the
Administrator reviewed the order of detention without affording an opportunity
to the petitioner to satisfy him that the grounds which may have existed for
directing the petitioner's detention did not exist on the date when the order
A resume of the relevant provisions of the
Defence of India Act and the Rules may briefly be made. The Defence of India
Act, 1962 was enacted by the Parliament with a view to arm the Central
Government with extraordinary powers in the situation which arose on account of
the Chinese invasion of the borders of India. By S. 3 of the Act power was
conferred upon the Central 246 Government to make rules for securing the
defence of India, civil defence, public safety, maintenance of public order and
related matters. Rule 30 authorised the Central Government or the State
Government, if it was satisfied with respect to any particular person that with
a view to preventing him from acting in any manner prejudicial to the defence
of India and civil defence, the public safety, the maintenance of public order
etc. it was necessary so to do, to make an order, amongst others, directing
that he be detained. By Rule 30-A machinery was set up for confirmation and
review of detention orders. Clause (2) of Rule 30-A provided that every
detention order shall be reviewed in accordance with the provisions contained
in the Rule. Clause (5) provided that a detention order made by an officer
empowered by the Administrator shall forthwith be reported to the
Administrator. By cl. (6) it was provided that on receipt of a report under
sub-rule (5) the Administrator shall after taking into account all the
circumstances of the case, either confirm or cancel the order. Clause (8)
provided that every detention order made by an officer empowered by the
Administrator and confirmed by him under cl. (b) of subrule (6) shall be
reviewed at intervals of not more than six months by the Administrator who
shall decide upon such review whether the order should be continued or
The validity of the order of detention was
challenged only on the ground that there had been no confirmation of the order
by the Administrator in the manner provided by Rule 30-A (6) (b). In the
petition it was alleged that there was in fact no confirmation by the
Administrator. The District Magistrate in his affidavit stated that the
Administrator had confirmed the order of detention on September 5, 1964, and
that all the procedural requirements relating to the making of the order were
duly complied with. By his affidavit in rejoinder the petitioner merely argued
that as the order was confirmed only on the basis of the report of the fact of
detention, it could not be said that the order was confirmed after taking into
account all the circumstances of the case under Rule 30-A(6). At the hearing
counsel for the petitioner asked for leave to amend the petition by setting up
in support of the Petition the ground that the Administrator had not taken
into, account all the circumstances of the case. In order to avoid any delay in
the disposal of the petition, counsel for the Delhi Administration, showed to
me the order of confirmation made by the Administrator and the original order
was banded up.
The order prima facie suffered from no
defect. Counsel for the petitioner did not urge any further argument in regard
to the validity of 247 the order of confirmation after the order was handed up
by counsel for the Delhi Administration.
Relying upon the use of the expression
"the Administrator who shall decide upon such review whether the order
should be continued or cancelled", it was urged that even if a proceeding
directing detention of a person in exercise of powers under Rule 30(1) and a
proceeding for confirmation of the order may be purely administrative, a
proceeding for review of the order under Rule 30-A (8) is quasi-judicial in
character and the Administrator must afford to the detenu an opportunity to
make his representation on the action proposed to be taken in regard to him on
review. Counsel submitted that an order of review of detention leading to
continuation of detention involves a judicial approach by the authorities to
all the facts on the basis of which the original order of detention was made
and a review of those facts in the light of subsequent developments including
the change of views, if any, of the detenu since he was detained, and this, it
was contended, cannot be effectively made unless the detenu is afforded an
opportunity to make his representation and to convince the Administrator that
the facts or circumstances which may have justified the making of the original
order of detention did not continue to exist or in the context of changed
circumstances did not justify the continuation of detention. Alternatively, it
was contended that the use of the word "decide" in cl. (8) of Rule
30-A implies the existence of a lis between the State on the one hand and the
detenu on the other relating to the right of the State to continue to detain
him after the expiry of the Period of six months contemplated by the statute.
In my view there is no substance in either of
the contentions. Rule 30(1) has been enacted as an emergency measure. It
authorises the appropriate Government or the Administrator, or authorities
empowered by the Government or the Administrator, with a view to prevent a
person from acting to the detriment of public order and safety, to detain him
without trial. However shocking it may appear that a person may be detained
without a trial or without being even informed of the specific grounds on which
such action is deemed necessary, in the larger interests of the security of the
State such as maintenance of peaceful conditions in the country, public order,
conduct of military operations etc. the Parliament has thought it necessary
when a grave emergency arose to invest the appropriate Government and the
Administrator with that power. Validity of the statute which invests the
executive with these drastic powers has been upheld 248 by this Court, and that
is no longer a live issue. It is conceded, and in my judgment rightly, that the
satisfaction of the authority which justified the use of the power under Rule
30, and confirmation of the order of detention are not subject to judicial
review, for the order of detention without trial is preeminently an executive
act. The subjective satisfaction of the detaining authority is a condition of
the making of the order, and if that condition is shown to exist, the courts have
no power to enquire into the sufficiency of materials on which the order is
made or the propriety or expediency of making the order. It is the satisfaction
of the prescribed authority which is determinative of the validity. That,
however, does not exclude the Court's power to investigate into the compliance
with the procedural safeguards imposed by the statute, or into the existence of
prescribed conditions precedent to the exercise of power, or into a plea that
the order was made mala fide or for a collateral purpose. That, however, is not
judicial review of the order.
If jurisdiction of the Court to enter upon a
judicial review of the order of detention and its confirmation is excluded, it
is difficult to appreciate the grounds on which it may legitimately be urged
that the decision to continue detention upon review of the order of detention
may still be regarded as subject to judicial review.
By cl. (8) of Rule 30-A power is conferred
upon the Administrator to review the detention at intervals of not more than
six months. This provision has apparently been made for ensuring that detention
of a person may not continue longer than is necessary for effectuating the
purpose for which it was originally made.
It invests the Administrator, subject to the
restriction imposed, with power to review the order of detention from time to
time and to decide whether the order should be continued or cancelled.
Making of an order of detention proceeds upon
the subjective satisfaction of the prescribed authority in the light of
circumstances placed before him, or coming to his knowledge, that it is
necessary to detain the person concerned with a view to preventing him from
acting in any manner prejudicial to the defence of India and civil defence, the
public safety, the maintenance of public order etc. If that order is purely
executive, and not open to review by the courts, a review of those very
circumstances on which the order was made in the light of the circumstances
since the date of that order cannot but be regarded as an executive order.
Satisfaction of the authority under Rule
30(1) proceeding upon facts and circumstances which justifies him in making an
order of detention and the satisfaction upon review of those very facts and 249
circumstances in the light of circumstances, which came into existence since
the order of detention, are the result of an executive determination and are
not subject to judicial review.
It was, however, urged that even if this
Court cannot review the determination of the authority, the Court is entitled
to inquire whether the authority before making the order brought to bear upon
it a judicial approach, that is whether the authority gave an opportunity to
the detenu to. make a representation against the action proposed to be taken in
regard to him, and if it appears that he failed to do so, a writ of certiorari
may issue and the order may be discharged by the issue of an appropriate writ.
There is no such safeguard prescribed by the
statute : it is also not implicit in the scheme of the statute. A writ of
certiorari lies wherever a body of persons having legal authority to determine
questions affecting the rights of subjects and having the duty to act
judicially act in excess of their legal authority; it does not lie to remove or
adjudicate upon the order which is of an administrative or ministerial nature.
See Province of Bombay v. Kusaldas S. Advant and others.(1) Counsel for the
petitioner contended that every order made by a public authority which affects
the rights of an individual must of necessity be preceded by a quasi-judicial
determination of the question on the determination of which the order may be
made and if the determination is made contrary to the rules of natural justice,
it is liable to be struck down by order of a competent court. He submitted that
this rule has been expounded by the House of Lords in a recent judgment (to be
presently noticed. The view which this Court has taken is inconsistent with any
such _proposition e.g., observations of Kania C.J. in Advani's case(1) at p.
633, of Mukherjea J. at p. 669 and of S. R. Das J., at p.
715; and in my judgment the observations of
Lord Reid in Ridge v. Baldwin and others(1) which counsel for the petitioner
leans upon, do not support that proposition. In Ridge's case(1) the watch
committee of a Borough in purported exercise of powers conferred on them by S.
191(4) of the Municipal Corporations Act, 1882 dismissed a chief constable from
his office, without formulating a specific charge, and without informing him of
the grounds on which they proposed to proceed, and without giving him an
opportunity to present his case. The watch committee in arriving at its
decision considered, inter alia, his own statements in evidence and the
observations made by the Judge who tried a case against him of (1)  S. C.
R. 621 (2) L R.  A. C. 40.
250 conspiracy to obstruct the course of
justice. The chief constable then brought an action against the watch committee
for a declaration that his dismissal was "illegal, ultra vires and
void". The House of Lords by a majority held that the chief constable
could be dismissed by the watch committee only on grounds stated in s. 191(4)
of the Act of 1882, and as they dismissed him on the ground of neglect of duty,
they were bound to observe the principles of natural justice. The power of
dismissal under s. 191(4) of Act 1882 could not in the view of the house be
exercised until the watch committee had informed the chief constable of the
grounds on which they proposed to proceed and had given him a proper
opportunity to present his case in defence, and the resolution of the watch
Committee without giving that information and affording him an opportunity to
defend himself was null and void. Ridge's case(1) does not support the broad
proposition that no order of public authority which affects the rights of a
person may be made, without giving that person an opportunity of making a
representation against the proposed order and the observations made on pp.
72 & 73 of the Report are clearly against
any such proposition. The House was dealing with a case involving the
interpretation of a statute enacted at a time when, as the Parliament was well
aware, the courts habitually applied the principles of natural justice to
Provisions like s. 191 (4) of the Act of 1882. The principal criticism of Lord
Reid was directed against what he conceived was the misunderstanding of the
well known passage in the judgment of Atkin, L.J. in Rex v. Electricity
Commissioners, Ex parte London Electricity Joint Committee Company(1) in
subsequent decisions especially by Lord Hewart C.J. in Rex v. Legislative
Committee of the Church Assembly, Ex parte Haynes-Smith ( 3 ) and in the
judgment of the Privy Council in Nakkuda Ali v. Jayaratne(4)-a case from
Ceylon, Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London
Electricity joint Committee Company(1) observed :
"But the operation of the writs (of
prohibition and certiorari) has extended to control the proceedings of bodies
which do not claim to be, and would not be recognised as, courts of justice.
Wherever anybody of persons having legal authority to determine questions
affecting the rights of subjects, and having the duty to act judicially, act in
excess of their legal authority, they are subject to the controlling
jurisdiction of the King's Bench Division exercised in these writs." (1)
L. R.  A. C. 40.
(2)  1 K. B 171, 205 (3)  1 K.B.
(4)  A. C. 66.
251 In dealing with a preliminary question
whether a writ of prohibition may be issued to prohibit the Legislative
Committee of the Church Assembly from proceeding with a measure called the
"Prayer Book Measure, 1927", Lord Hewart C.J. in Rex v. Legislative
Committee of the Church Assembly Ex parte Haynes Smith(1) proceeded to observe
at p. 415 :
" In order that a body may satisfy the
required test it is not enough that it should have legal authority to determine
questions affecting the rights of subjects; there must be super added to that
characteristic the further characteristic that the body has the duty to act
judicially." Lord Reid took exception to the last clause of the law so
He observed :
" If Lord Hewart meant that it is never
enough that a body simply has a duty to determine what the rights of an
individual should be, but that there must always be something more to impose on
it a duty to act judicially before it can be found to observe the principles of
natural justice, then that appears to me impossible to reconcile with the
earlier authorities." The point of the criticism was that a body invested
with authority to determine what the rights of an individual should be, may be
held to perform a judicial function without something more in the statute to
impose on it a duty to act judicially. But it was not said that whenever a body
is called upon to determine or decide some question which affects the rights of
an individual, the proceeding must be regarded as judicial.
In Nakkuda Ali v. M. F. De S. Jayaratne(2) a
decision of the Judicial Committee in a case coming from Ceylon-an order of the
Controller of Textiles in Ceylon cancelling the licence of a dealer under Rule
62 of the Defence (Control of Textiles) Regulations, 1945-a war-time
regulation-which authorised him to cancel a licence "where the Controller
had reasonable grounds to believe that any dealer was unfit to be allowed to
continue as a dealer" was challenged in the Supreme Court of Ceylon by a
petition for a writ of certiorari. The Supreme Court dismissed the petition,
and the Judicial Committee affirmed the order. In the view of the Judicial
Committee the words of Regulation 62 imposed "a condition that there must
in fact exist such reason(1)  K. B. 411.
(2)  A. C. 66.
252 able grounds, known to the controller,
before he can validly exercise the power of cancellation. But it does not
follow necessarily from this that the controller must be acting judicially in
exercising this power". The Judicial Committee observed " "It is
a long step in the argument to say that because a man is enjoined that he must
not take action unless he has reasonable ground for believing something he can
only arrive at that belief by a course of conduct analogous to the judicial
process. And yet, unless that proposition is valid, there is really no ground
for holding that the controller is acting judicially or quasi-judicially when
he acts under this regulation. If he is "not under a duty so to act then
it would not be according to law that his decision should be amenable to review
and, if necessary, to avoidance by the procedure of certiorari," and held
that certiorari did not lie in the case. The Judicial Committee then quoted the
passage already set out from the judgments of Atkin L.J., in Rex v. Electricity
Commissioners, Ex parte London Electricity Joint Committee Company(1), and of
Lord Hewart C.J. in Rex v. Legislative Committee of the Church Assembly, Ex
parte Haynes-Smith (2 ) and observed that, "It is that characteristic that
the controller lacks in acting under regulation 62".
In Nakkuda Ali's case(1) the Controller was
prima facie dealing with a case in which the rights of a person were to be
determined, but the Judicial Committee was of the view that the statute in the
particular case did not require the Controller to act judicially. There is
undoubtedly a clear distinction between cases in which an authority is invested
with power to determine the rights of a person, and cases in which the
authority is invested with power to act in a certain matter, and the exercise
of that power affects the rights of a person. In the former, the duty to act
judicially may readily be inferred. But whether a public authority invested
with powers to pass a specified order is required to act judicially must depend
upon the scheme of the statute which invests him with that power. The nature of
the authority conferred, the procedure prescribed and the nature of the powers
exercised will determine the question whether the public authority is required
to act judicially it is not however predicated that before a writ of certiorari
or prohibition may issue the duty to (1)  1 K. B. 171.
(3)  A. C. 66.
(2)  1 K. B. 411.
253 act judicially must be expressly or
independently imposed upon the authority called upon to determine the rights of
a citizen. In the view of the Judicial Committee "if the mere requirement
that the Controller must have reasonable grounds of belief is insufficient to
oblige him to act judicially, there is nothing else in the context or
conditions of his jurisdiction that suggests that he must regulate his action
by analogy of judicial rules." The scheme of the Regulation therefore
negatived according to the Judicial Committee, a judicial approach.
I am not concerned in this case with the
validity of the criticism by Lord Reid of the two decisions. It is sufficient
to state for the purpose of this case that there is no principle or binding
authority in support of the view that wherever a public authority is invested
with power to make an order which prejudicially affects the rights of an
individual whatever may be the nature of the power exercised whatever may be
the procedure prescribed, and whatever may be the nature of the authority
conferred, the proceeding of the public authority must be regulated by the
analogy of rules governing judicial determination of disputed questions.
The alternative contention that the use of
the word "decide" in Rule 30-A (8) compels a judicial approach cannot
also be sustained. As pointed out by Fazl Ali J., in Advani's case(1) at p. 642
"The word "decision" in common
parlance is more or less a neutral expression and it can be used with reference
to purely executive acts as well as judicial orders. The mere fact that an
executive authority has to decide something does not make the decision
It is the manner in which the decision has to
be arrived at which makes the difference, and the real test is: Is there any
duty to decide judicially ?" Rule 30-A(8) requires the Administrator to
review at intervals of not more than six months the detention order and then to
decide upon such review whether the order be continued or cancelled. That only
imports that the Administrator after reviewing the material circumstances has
to decide whether the detention of the detenu should be continued or cancelled.
Undoubtedly, in reviewing the order of detention, the Administrator would be
taking into account all the relevant circumstances existing at the time when
the order was made. the subsequent developments, which (1)  S. C. R. 621.
sup.Cl/65-2 254 have a bearing on the detention
of the detenu and the representation, if any, made by the detenu. But the rule
contemplates review of the detention order and in the exercise of a power to
review a condition of a judicial approach is not implied.
Counsel for the petitioner said that the
order of the Administrator dated February 24, 1965 was invalid, because the Administrator had reviewed the order confirming the order of detention and not
the order of detention. In the preamble clause there is a reference to a
"report for review of the order, dated the 5th September, 1964 confirming the detention order" of the petitioner. But it is difficult to
divorce the order of detention from the order of confirmation, for without
confirmation the order of detention would have no legal sustenance. The Rule
provides that the order of detention shall forthwith be reported, if made by an
officer empowered by the Administrator, to the Administrator and that the
Administrator shall, after taking into account an the circumstances of the
case, either confirm the detention order or cancel it. It is pursuant to the
detention order so confirmed, that a person remains detained, and the review
which is intended to be made under Rule 30-A (8) is of that order which is
confirmed. The second paragraph of the order of the Administrator makes it
clear that the detention order of the petitioner shall continue and that
detention order is clearly the order made by the District Magistrate and
confirmed by the Administrator.
The petition therefore fails and is dismissed.