The State of Bombay Vs. Atma Ram
Sridhar Vaidya [1951] INSC 5 (25 January 1951)
KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID
SASTRI, M. PATANJALI MUKHERJEA, B.K.
DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 157 1951 SCR 167
CITATOR INFO :
R 1951 SC 174 (10) E 1951 SC 270 (7) R 1952
SC 350 (11) R 1953 SC 318 (3) R 1954 SC 179 (8) RF 1956 SC 531 (4,5) E&D
1957 SC 23 (9) E&F 1957 SC 164 (3) F 1958 SC 163 (14) R 1959 SC1335 (10,13)
RF 1962 SC 911 (7) RF 1964 SC 334 (6) R 1966 SC1910 (4,8) RF 1967 SC 295 (60) R
1970 SC 852 (5,14) R 1972 SC2086 (11) RF 1973 SC2469 (5) R 1974 SC 183
(15,58A,59) D 1974 SC 255 (8) RF 1976 SC1207 (116) R 1979 SC1925 (8,17) RF 1981
SC 28 (14) D 1982 SC1029 (9) RF 1982 SC1315 (23,30,32) R 1984 SC 444 (14)
ACT:
Constitution of India, Arts. 21, 22
(5)--Preventive detention-Duty to communicate grounds and to afford opportunity
to make representation--Whether distinct rights--Ground supplied vague Non supply
of particulars or supply of particulars at later stage-Whether vitiates detention--Jurisdiction
of court to consider sufficiency of grounds--Preventive Detention Act (IV of
1950), s. 3.
HEADNOTE:
The respondent was arrested on the 21st of
April, 1950, under the Preventive Detention Act, 1950, and on the 29th of 168
April. 1950, he was supplied with the ground for his detention which was as
follows: "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 contending that the ground supplied
was vague as it did not mention the time, place or nature of the sabotage or
how the respondent promoted it and that as the ground gave no particulars, his
detention was illegal. Pending the disposal of the petition, the Commissioner
of Police sent a communication to the respondent giving these further
particulars, viz., that the activities mentioned in the grounds supplied to him
were being carried on by him in Greater Bombay between January, 1950, and the
date of his detention and that he will in all probability continue to do so.
The High Court of Bombay held that if these particulars had been furnished at
the time when the grounds were furnished on the 29th of April, 1950, very
likely they would have come to the conclusion that the grounds were such as
would have led the detenue to know exactly what he was charged with and to make
a proper representation, but released the respondent holding that the only
grounds which were furnished in the purported compliance of Art. 22 (5) were
the grounds furnished on the 29th of April, 1950, and as these grounds were not
such as to enable the detenue to make a proper representation, there was a
violation of a fundamental right and a contravention of the statutory
provisions and this violation cannot be set right by the detaining authority by
amplifying or improving the grounds already given:
Held by the Full Court (KANIA C.J., FAZL ALI,
PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ).-Under s. 3 of
the Preventive Detention Act, 1950, it is the satisfaction of the Central
Government or the State Government, as the case may be, that is necessary, and
if the grounds on which it is stated that the Central Government or the State
Government are satisfied have a rational connection with the objects which were
to be prevented from being attained, the question of satisfaction cannot be
challenged in a court of law except on the ground of mala fides.
Held also per KANIA C.J., FAZL ALI, MUKHERJEA
and CHANDRASEKHARA AIYAR JJ., (PATANJALI SASTRI and DAS JJ.
dissenting).--Clause (5)of Art. 22 confers
two rights on the detenue, namely, first, a right to be informed of the grounds
on which the order of detention has been made, and secondly, to be afforded the
earliest opportunity to make a representation against the order; and though
these rights are linked together, they are two distinct rights. If grounds
which have a rational connection with the objects mentioned in s. 3 are
supplied, the first condition is complied with. But the ,right to make a
representation implies that the detenue should have information so as to enable
him to make a representation, and if the grounds 169 supplied are not
sufficient to enable the detenue to make a representation, he can rely on the
second right. He may if he likes ask for further particulars which will enable
him to make a representation. On an infringement of either of these two rights
the detained person has a right to approach the court, and even if an
infringement of the second right under Art. 22 (S) is alone, established he is
entitled to be released.
Per PATANJALI SASTRI and DAS JJ.--As the
power to issue a detention order depends upon the existence of a state of mind
in the detaining authority, that is, its satisfaction, which is purely a
subjective condition and judicial enquiry into the sufficiency of the grounds
to justify the detention is thus excluded, it would be wholly inconsistent with
the 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, the
grounds to be communicated to the person detained are the grounds on which the
order has been made. There is further nothing in Art.
22, el. (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 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,
or that the latter part of cl. (5) confers a distinct right on the detenue or
an independent obligation on the detaining authority to furnish the detenue
with sufficient particulars and details to enable him to make an effective
representation.
Held by the Full Court (KANIA C.J., FAZL ALI,
PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.)-In any view, on
the facts of the case there was no infringement of any fundamental right of the
respondent or contravention of any constitutional provision as he had been
supplied with sufficient particulars as soon as he raised the objection that the
grounds supplied were vague and the respondent was not, therefore, entitled to
be released.
Per KANIA C.J., FAZL ALI, MUKHERJEA and
CHANDRASEKHARA AIYAR JJ.)--The "grounds" for making the order which
have to be communicated to the person detained as soon as may be are
conclusions of facts and not a complete recital of all the facts. These grounds
must be in existence when the order is made. No part of the 'grounds can be
held back, and after they have been once conveyed there can be no addition to
the grounds. All facts leading to the conclusion constituting the ground need
not, however, be conveyed at the same time.
If a second communication contains no further
conclusion of fact but only furnishes some of the facts on which the first
mentioned conclusion was rounded it does not amount to a fresh ground. The test
therefore is whether what is conveyed in the second communication is a
statement of facts or events, which facts or 170 events were already taken into
consideration in arriving at the conclusion constituting the ground already
supplied.
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 detenue mentioned in Art. 22, cl. (5). 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 second duty, viz., to give the
detained person the earliest opportunity to make a representation, cannot be
overlooked.
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 it cannot be said to be "vague." The question
whether the vagueness or indefinite nature of the statement furnished to the
detained person is such that he was not given the earliest opportunity to make
a representation is a matter within the jurisdiction of the court's inquiry and
subject to the court's decision.
CRIMINAL APPELLATE JURISDICTION: Case No. 22
of 1950.
Appeal under Art. 132(1) of the Constitution
against a judgment and order of the Bombay High Court dated 1st September,
1950, in Criminal Application No. 807 of 1950. The facts and arguments of
counsel are set out in the judgment.
M.C. Setalvad Attorney-General, (G. N. Joshi,
with him) for the appellant.
A.S.R. Chari and Bava Shiv Charan Singh for
the respondent.
1951. Jan. 25. The judgment of Kania C.J.,
Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ. was delivered by Kania C.J.
Patanjali Sastri and Das JJ. delivered separate judgments.
KANIA C.J.--This is an appeal from a judgment
of the High Court at Bombay, ordering the release of the respondent who was
detained in custody under a detention order made under the Preventive Detention
Act (IV of 1950). The respondent was first arrested on the 18th of December,
1948, under the Bombay 171 Public Security Measures Act, 1948 (Bombay Act IV of
1947), but was released on the 11th of November, 1949. He was arrested again on
the 21st of April, 1950, under the Preventive Detention Act, 1950, and on the
29th of April, 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 the 31st
of July, 1950, in which, after reciting his previous arrest and release, in
paragraphs 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 20th April, 1950, he returned to
Bombay and was immediately arrested as stated above." He contended that
the sole aim of the Government 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 the
9th of August, 1950, it directed the issue of a notice to the Commissioner of
Police. Pending the disposal of the Rule, on the 26th August, 1950, the
Commissioner of Police sent a communication to the respondent as follows:
"In pursuance of section 7 of the
Preventive Detention Act, 1950 (Act IV of 1950), and in continuation of my
communication No. 227 dated the 29th April, 172 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 sub-section (1) of section 3 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 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." On the 30th
of August, 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, 1950, 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 detenue was
against public interest. In para. 6 there was a specific denial that 173 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.
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 section 491 of the Criminal Procedure Code, that this is
not a ground which would enable the detenue 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 any
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 detenue 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: "Anew 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 article 22(5) were the
grounds furnished to the detenue on the 29th of April, 1950; and if these
grounds were not such as to enable the detenue to make a proper representation,
then there was a 174 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 article 22 (5) is the 29th
of April, 1950, when the grounds were furnished, and not when further and
better particulars were given on the 26th of August 1950." The learned
Attorney-General, appearing for the appellant, has strenuously objected to this
line of approach.
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 detenue 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, article 22 lays down the permissible limits of 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 an initio,
ceases to be "in accordance with procedure established by law" and
infringes the fundamental right of the detenue guaranteed under articles 21 and
22 (s) of the Constitution. In that way the subject of preventive detention has
been brought into the chapter on Fundamental Rights. In the 3resent case we are
concerned only with clauses (5) and (6) of article 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, 175 as soon as may be, communicate to
such person the ground on which the order has been made and shall afford him
the earliest opportunity of making a representation against the order.
(6) Nothing in clause (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." It has to be borne in mind that the legislation in question is
not an emergency legislation. The powers of 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 of legal proof of any specific offence, although
it may be indicative of a strong probability of the impending commission of a
prejudicial act. Section a of the 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 (8) the maintenance of supplies and
services essential to the community ......... it is necessary So to do, make an
order directing that such person be detained.
According to the wording of section 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 of the three objects mentioned in the section,
and that the detaining authority was satisfied that it was necessary to prevent
him from 23 176 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 be 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. 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 came 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.
An order having been so permitted to be made,
the next step to be considered is, has the detained person 177 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 article 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 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 on which satisfaction the order of detention has been made. The
third thing provided is in clause (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 clause (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 article 22, clauses (5) and (6), of the Constitution.
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 178 furnishing of the grounds once and therefore there is no
occasion for furnishing particulars or supplemental grounds at a later stage;
and that article 22 (5) does not give the detained person a 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 article 22
(5). 'The first part of article 22, clause (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 be done "as soon as may be." The second
right given to such persons 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
very nature 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 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 179
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 detenue 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 detenue 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 un-provided 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.
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 detenue 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 180 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 article 22 (5), as those grounds for the order of detention were not
conveyed to the detained person "as soon as may be." 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
rounded 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 he test appears to be whether what is conveyed
in the second communication is a statement of facts or vents, 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.
The next point to be considered is the time
factor. if a second communication becomes necessary, when should it be made ?
Clause 22 (5) lays down two time factors. The first is that the grounds should
be supplied "as soon as may be " This allows the 181 authorities
reasonable time to formulate the grounds on the materials in their possession.
The time element is necessarily left indeterminate because activities of
individuals tending 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 article 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 detenue 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 rounded could and should
equally be conveyed to the detained person to enable him to make out his
objections against the 182 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
rights of the detained person under article 22 (5).
It was argued that under article 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 article 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 withheld 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.
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 183 which is insufficient to enable the detenue 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
statements 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
article 22 (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 of the
detaining authority to furnish the grounds, i.e., materials on which the
detention order was made. In our opinion, it is therefore clear that while
there is a connection between the obligation on the part of the detaining
authority to furnish grounds and the right given to the detained person to have
an earliest 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, 24 184 whether it is
sufficient to enable the detained person to make the representation at the
earliest opportunity.
The argument advanced on behalf of the
respondent mixes up the two rights given under article 22 (5) and converts it
into one indivisible right. We are unable to read article 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
section a of the Act are supplied, the first condition is satisfied. If the
grounds are not sufficient to enable the detenue to make a representation, the
detenue 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 article 22 (5) is
established he is bound to be released by the court. To treat the two rights
mentioned in article 22 (s) as one is neither proper according to the language
used, nor according to the purpose for which the rights are given.
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 185
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 article 22 (5) must be
one which on being considered may give relief to the detained person.
The argument that supplementary grounds
cannot be given after the grounds are first given to the detenue, 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 additional grounds, 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 article 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 186 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 first 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 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 article 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 article 22 (5)
of the Constitution.
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 clause (5) of article 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 clause (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 a
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 187 discharge the duty in
furnishing grounds for the order 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 detenue 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 clause (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 detenue 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 clause (5) of article 22.
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 and unsatisfactory the grounds are which the
detaining authority furnished to the detenue; and we are compelled to say that
in almost every case we have felt that the grounds could have been ampler and
fuller without any detriment to 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 article 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 188 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 article 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.
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 detenue 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 article 22 (5) of the Constitution.
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 detenue to make a representation to which he is
entitled both under the Act and under the Constitution." In this case the
later communication of the 26th August, 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
29th April, 1950, very likely the 189 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 case therefore the
respondent's petition should have been dismissed. We therefore allow the
appeal.
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 article 22,
clause (8), which is reproduced in section 7 of the 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 ? It is now settled by the decision of the majority
in Gopalan's case(1) that article 21 is applicable to preventive detention
except in so far as the provisions of article 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 clauses (5) and (6) of
article 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 clause (5) shall require the
authority making any such order as is referred to in that clause (1) [1950]
S.C.R. 88.
190 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 article 22 (5) and whether they have been complied with in the
present case ? 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 repel 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 on which the detention has been
based, there would be no real compliance with the procedure prescribed by
article 22 (s), 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.
It must now be taken as settled by the
decision of this Court in Gopalan's case(1), which on this point was (1) [1951]
S.C.R. 88.
191 unanimous, that section 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. Halliday(1), 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 "The 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 Mahar v. The King (2).
These decisions clearly establish, what indeed is plain from the nature of the
measure, 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.
(1) [1917] A.C. 260, 269. (2) [1949-50] 25
192 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 section 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 clause (5) of article 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 section 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 (1) as to the constitutionality
of section 3 required reconsideration in the light of his arguments based on
article 22, clause (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 section 14 of the Act and the present argument must, in my opinion, be
rejected because it runs counter to that decision.
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 clause (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 of the argument,
namely, that clause (5) contemplates an inquiry where the person detained is to
be formally charged with (1) [1950] S.C.R.188, 193 specific acts or omissions
of a culpable nature and called upon to answer them. As pointed out by Lord
Atkinson in Rex v. Halliday (1), 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. 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 article 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 such 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 article 22, clause (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 to a person under preventive detention [vide article 22
(1), (2) and (3)3 and this. Court held in Gopalan's case(2) 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 (1) [1917] A.C. 260, 275. (2) [1950] S.C.R. 88, 194 the authority
which does not in any way embark on a judicial or quasi-judicial inquiry. In
such circumstances 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 such person
should be enabled 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.
Perhaps the most cogent reason for rejecting
the argument is to be found in the language and provision of clause (6) of
article 22. "Nothing in clause (5)", that is to say, neither the
right to be informed of the "grounds" of detention nor 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, clause (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 clause (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 clauses (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.
It is worthy of note that in the well-known
English case of Liversidge v. Anderson C), the existence of a (1) [1942] A.C.
206.
195 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 cause' is one which may be discussed
in a court which has not the power of eliciting the facts which in the opinion
of the Secretary of State amount to 'reasonable cause'." There was
considerable discussion as to the meaning of the words "grounds" and
"representation" used in clause (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 clauses (5) and (6) are not mutually exclusive in the
sense that, when clause (6) is invoked, clause (5) ceases to be applicable.
When, therefore, the detaining authority withholds the material facts under
clause (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 196
still be a "representation ", within the meaning of clause (5). This
shows that no precise connotation can be attributed to the terms "grounds"
and" representation" as used in clause (5), for in certain cases at
least, the one can be vague and the other inadequate from the point of view of
the person detained and, on a question of construction they need not be
different in other cases.
It was suggested in the course of the
argument that clause (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
-he performance of the duties imposed by clause (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 197 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
fairplay. 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.
While clause (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.
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 198 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 article 22 nor in the Act is there any express
provision that particulars of the grounds of detention should be given to the
person detained.
Our attention was called to the decision of
this court in Ishwar Das v. The State(1) 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.
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 a fundamental right and must not adopt
a construction of article 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 (1) Not reported.
199 powers are still left to the court in the
matter. It is in this light that I have endeavoured to construe clause (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.
DAS 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 clauses (5)
and (6) of article 22 of our Constitution which have been reproduced in section
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 and Others v. The
State of West Bengal)(1). 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.
Under section 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-clauses (i), (ii) and (iii) of
clause (a), an order should be made. What materials will engender in the mind
of the authority the requisite satisfaction under section 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 (11) Reported infra at p. 212 (1) Reported infra
at p.212.
26 200 make the detention order. The
authority concerned may be a person who will not derive the requisite
satisfaction except on very precise and full information 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 be 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 a person of the
first mentioned type makes an order of detention create no difficulty, for such
grounds are quite precise 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, becomes invalid because these very grounds, when communicated
to the detenu, are found to be insufficient to enable him to make a representation.
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 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 201 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 article 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 of 1950), which was passed after the Constitution
came into effect must be read in the light of article 22 (5) as construed
above. So read, the satisfaction of the authority referred to in section a of
the Act cannot be the subjective satisfaction 202 of the authority, for the
satisfaction must be founded on grounds which, when communicated later on, will
enable the detenu to make a representation which postulates an objective test.
This involves that section 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 section 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 section 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 article 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
section 3 of the Preventive Detention Act, 1950. It was held 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 Machindar Shivaji Mahar v. The
King(1) 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 (1) [1949-50]
F.C.R. 827 at p.831, 203 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(1) which
came up for consideration after the Constitution had come into force. In that
case it was held unanimously that under section 3 of the 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
section 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 section 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
hereinbefore stated. The decision in Gopalan's case(1) as to the validity of
section 3 of the Act makes it impossible to accept this argument.
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 (1) [1950] S. C.
R. 88.
204 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 article 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(1) 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 article 21, the framers of our
Constitution proceeded to lay down certain procedural requirements which, as 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 article
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 section 3 of the 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 clause (5) of article 22, for if there is such
non-compliance, the (1) [1950] S.C.R. 88.
205 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.
I am prepared to concede that there is some
correlation between the two parts of article 22 (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 tatter part of
clause (5). The fact that there is correlation between the two parts of clause
(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 clauses (1) and (2)
of article 22 206 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 clause (5) itself indicates that the grounds must
be such as will enable the detenu to make a representation is to read into
clause (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, clause (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(1) 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 clause (5) the authority is to communicate the grounds on which
the order has been made. This will let the detenu know what operated on 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 clause (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 (1)
[1950] S.C. R. 88.
207 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 exclude such an inconsistent implied provision. Again,
clause (6)of article 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 clause (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 clause 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 clause (6) of article 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 clause (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 clause (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 clause (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 27 208 for making an assumption which will introduce an objective test
in a matter which is prima facie intended to be purely subjective.
The argument is then re-stated in the
following further modified form. Clause (5) of article 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 clause (5) the
authority is also under the obligation to afford the earliest opportunity to
the detenu to make a representation. If the grounds on which the order has been
made were vague, then the second part of clause (5), independently and without
reference to the first part of clause (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 clause (5), for without
such particulars the detenu is not afforded the opportunity to make a representation.
I am unable to accept this line of argument. Under the first part of clause (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 clause
(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 clause
(5), 209 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 clause (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 a representation. 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 clause (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 210 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 clause (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 clause
(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
clause (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 particulars does not
constitute an infraction of any fundamental right.
It is said that clause (5) of article 22
construed in the way suggested above, would render that clause nugatory for it
will then really guarantee no fundamental right at all. I respectfully 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
the Constitution. These rights remain unaffected. If the provisions of clause
(5) of article 22 of our Constitution on a correct interpretation thereof are
found to be inadequate for the protection of the liberty of 211 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.
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(1) the question was
not raised or argued as it was made clear in the judgment itself.
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 article 22 (5) which
have been reproduced in section 7 of the Preventive Detention Act have been
fully complied with. Even according to the views expressed by the majority of
my colleagues I would 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, (1) Not reported.
212 allow this appeal and reverse the
decision of the Bombay High Court.
Appeal allowed.
Agent for the appellant: P.A. Mehta.
Agent for the respondent: V.P.K. Nambiyar.
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