S. Krishnan & Ors Vs. The State of
Madras [1951] INSC 31 (7 May 1951)
SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN
CITATION: 1951 AIR 301 1951 SCR 621
CITATOR INFO :
F 1952 SC 181 (6,30) F 1959 SC 609 (14) R
1962 SC 945 (19) RF 1967 SC1643 (14,237) R 1970 SC 494 (13) F 1972 SC1660 (7)
RF 1973 SC1461 (301,1919) RF 1974 SC 396 (25) R 1974 SC 613
(9,10,11,17,28,32,33,51) R 1974 SC1336 (8) R 1975 SC 863 (5) E 1976 SC1207 (66)
RF 1977 SC1884 (23)
ACT:
Preventive Detention (Amendment) Act, 1951,
ss. 9, 10, 11, 12--Indian Constitution, 1950, Arts. 22 (4) (a) & (b), 22
(7)--Detentions under earlier Act treated as detentions under new Act and
continued for more than one year--Omission to fix maximum period--Infringement
of fundamental rights--Contravention of Constitution--Validity of amending
Act--Temporary Statutes--Order of detentions --Validity after expiry of
Statute.
HEADNOTE:
The Preventive Detention (Amendment) Act of
1951 which extended the operation of the Preventive Detention Act of 1950 for a
period of one more year, that is, up to 1st April, 1952, effected two material
alterations by providing (i) that a reference to an Advisory Board shall be
made in all cases within six weeks (s. 9); (ii) that every detention order in
force at the commencement of the new Act shall continue in force and shall have
effect as if had been made under the Act as amended (s. 12). The petitioners,
who were On the date of the commencement of the amending Act in detention in
pursuance of orders made under s. 3 (1) (a) (ii) of the Preventive Detention
Act of 1950, and who but for the amending Act would have been entitled to be
released under the earlier Act on the expiry of one year from the date of the
order of detention, applied for habeas corpus contending that ss. 9 and 12 of
the amending Act which enacted the above mentioned provisions contravened the
provisions of Art. 22 (4) (a) of the Constitution and were consequently void
under Art. 13(a) inasmuch as the combined effect of these sections was to keep
the petitioners in detention for a period longer than three months without
reference to an Advisory Board, and also to keep them in detention for a period
of more than one year. The Act was also attacked on the ground that it did not
fix any maximum period for detention:
Held, per KANIA C.J., PATANJALI SASTRI,
MAHAJAN, S.R. DAs and Bose JJ. :--that ss. 9 and 12 of the Preventive Detention
(Amendment) Act, 1951, did not contravene Art.. 22 (4) of the Constitution and
were not void.
622 Per KANIA C.J., and PATANJALI SASTRI
J.--The amending Act could be regarded as a law made substantially in accordance
with sub-clauses (a) and (b) of cl. (7) of Art. 22, and as such it satisfied
the requirements of Art. 22 (4) (b) and cannot be held to be unconstitutional
or void.
Per MAHAJAN and DAs JJ.--The law enacted by
the amending statute is not the same law as was declared by the original
statute and to that extent the amended statute was in the nature of a new and
independent statute; the effect of s. 12 was to make the detention of the
petitioners a fresh detention under the new law; and there was nothing in the
new law standing by itself which authorised detention of a person for more than
three months without reference to an Advisory Board or for more than one year
and there was thus no contravention of any of the provisions of Art. 22 (4).
Held also per KANIA C.J., PATANJALI SASTRI,
MAHAJAN and Das JJ. (Bose J. dissenting).--The Preventive Detention (Amendment)
Act, 1951, was not invalid on the ground that it. did not fix a maximum period
for detention, inasmuch as the Act itself was to be in force only for a period
of one year and no detention under the Act could be continued after the expiry of
the Act. BoSE J.--Sub-section (1) of s. 11 of the impugned Act contravened Art.
22 (4) of the Constitution inasmuch as it did not fix any maximum period of
detention, but on the other hand empowered the government in express terms to
order that a detention shall continue "for such period as it thinks
fit". The view that a detention which has been ordered under an Act would
come to an end with the expiry of the Act is not sound.
ORIGINAL JURISDIGTION. --Petitions Nos.
303,617 to 619, 621 to 631, 567 to 571, 592, 594, 596 and 600 of 1950.
Petitions under Art. 32 of the Constitution
for writs in the nature of habeas corpus. The petitioners were detained in
pursuance of orders for detention made under s. 3 (1)(a) (ii) of the Preventive
Detention Act, 1950. On the 22nd February, 1951, while they were under
detention the Preventive Detention (Amendment) Act, 1951, came into force and
this Act by substituting the figures "1952" for "1951" in
sub-sec. (3) of s. 1 of the Preventive Detention Act of 1950 continued the
operation of the Act until 31st March, 1952.
Since the maximum period of detention fixed
by the Act of 1950 was one year the petitioners applied for writs in the nature
of habeas corpus for their release. The material facts, the points raised by
623 the petitioners and the arguments of the counsel appeal in the Judgment.
M.K. Nambiyar (V. G. Row, with him) for the
Petitioner in Petition No. 303 of 1950.
Bawa Shiv Charan Singh for the Petitioners in
Petitions Nos. 618, 619, 621,622, 624, 626, 627, 628, 629, 630 and 631 of 1950.
Basant Chandra Ghose (amicus curiae) for the
Petitioners in Petitions Nos. 567, 568, 569, 570, 571,592, 594,596, and 600 of
1950.
V.K.T. Chari, Advocate-General, Madras, and
G.S. Swaminathan (R. Ganapathy lyer. with them) for the Respondents in Nos.
618, 619, 621,622, 624,626, 627, 628, 629, 630 and 631 of 1950.
Fakhruddin Ahmed (Nuruddin Ahmed, with him)
for the Respondents in Petitions Nos. 567, 568, 569, 570, 571,592, 594, 596 and
600 of 1950.
Petitioner in person in Petition No. 617 of
1950.
M.C. Setalvad, Attorney-General for India (R.
Ganapathy lyer, with him) for the Union of India, Intervener.
1951. May 7. The following Judgments were
delivered -KANIA C.J. I agree with the Judgment prepared by Sastri J. and have
nothing more to add.
PATANJALI SASTRI J.--The common question
which arises for consideration in these petitions is whether certain provisions
of the Preventive Detention (Amendment) Act, 1951, purporting to amend the Preventive
Detention Act, 1950, so as to authorise detention of , the petitioners to be
continued beyond the expiry of one year are ultra vires and inoperative.
The amending Act hereinafter referred to as
the new Act) came into force on 22nd February, 1951, and by substituting the
figures " 1952" for "1951" in subsection (3) of section 1
of the Preventive Detention Act, 1950, (hereinafter referred to as the old Act)
it 624 continues the operation of the old Act till 31st March, 1952.
The petitioners in all these cases were, at
the commencement of the new Act, under detention in pursuance of orders made
under section 3 (1) (a) (ii) of the old Act and, save in a few cases where the
detention was also attacked on some special grounds which have no substance,
the legality of that detention was not open to question. But such detention
having commenced more than a year before the date of hearing of these petitions
the petitioners would have been entitled to be released had it not been for the
provisions of the new Act which purport to authorise the continuance of their
detention.
Mr. Nambiyar, on behalf of the petitioners,
urged that these provisions contravened article 22 (4) (a) of the Constitution
and were, therefore, void under article 13 (2). Article 22 (4) (a) provides:
"No law providing for preventive
detention shall authorise the detention of a person for a longer period than
three months unless (a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as Judges of a High Court has
reported before the expiration of the said period of three months that there is
in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause
shall authorise the detention of any person beyond the maximum period prescribed
by any law made by Parliament under sub-clause (b) of clause (7)." It will
be. seen that two conditions have to be fulfilled in order that a person can be
detained for a longer period than three months; (i) his case must be referred
to an Advisory Board constituted in the manner specified and (ii) that Board
must make a report before the expiration of three months that there is
sufficient cause for such detention. Section 12 of the old Act having provided
that there was to be no review by an Advisory Board in cases falling within 625
section 3 (1) (a) (ii), the petitioners' detention in pursuance of orders made
under the latter section fell under article 22 (4) (b), and there was no
question, therefore, of such detention contravening article 22 (4) (a). The
scheme of the new Act, however, was to extend the benefit of a review by an
Advisory Board to all cases and to bind the detaining authorities to act
conformably to the report of the Board. The method adopted to give effect to
this scheme was to delete some of the provisions of the old Act and to
substitute in their place new provisions.
The material provisions of the new Act are
sections 9, 10, 11 and 112. Section 9 provides for a reference to an Advisory
Board within six weeks from 'the date specified in sub-section (2) which says
"The date referred to in sub section (1) shall be--(a) in every case where
at the commencement of the Preventive Detention (Amendment) Act, 1951, the
person is under detention in pursuance of a detention order made under
sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1)of section 3,
the date of commencement of the said Act; and (b) in every other case the date
of detention under the order". By section 10 the Advisory Board is required
to submit its report within ten weeks from the date specified in sub-section
(2) of section 9. Section 11 (1)authorises the appropriate Government to
continue the period of detention for such period as it thinks fit in case the
Advisory Board reports that there are sufficient grounds for the detention,
while sub-section (2) provides that the Government shall revoke the detention
order and release the person concerned if the Advisory Board reports the other
way. Sub-section (1) of section 12 declares for the "avoidance of
doubt" that every detention order in force at the commencement of the new
Act "shall continue in force and shall have effect as if it had been made
under this Act as amended" by the new Act, and sub-section (2) provides
that nothing contained in subsection (3) of section 1 or in subsection (1) of
section 12 of the old Act shall affect the validity or duration of any such
order.
626 It will be seen that although the object
of the new Act was to liberalise the provisions of the old Act in the manner
indicated above, section 12 had the effect of enlarging the period of detention
of the petitioners who were under detention at the commencement of the new Act
by enacting the legal fiction that detention in such cases shall have effect as
if it had been made under the new Act. On that basis, the new Act seeks to
bring detention orders in force at its commencement and more than three months
old into conformity with article 22 (4) (a) by prescribing a period of six
weeks in section 9 for referring such cases to the Advisory Board and ten weeks
in section 10 (1) for the submission by the Board of its report, the period in
each case being calculated from the commencement of the new Act.
But this fiction cannot obscure the fact that
in the case of the petitioners more than three months had elapsed from the date
of their arrest without any Advisory Board making a report on their detention
and it is, of course, not possible for the Advisory Board now provided for in
such cases to submit its report before the expiration of that period, with the
result that their detention contravened article 22 (4) (a). No doubt the
detention up to the commencement of the new Act was lawful under section 12 of
the old Act, as it was in accordance with sub-clause (b) of clause (4) of
article 22, but that could not make the petitioners' continued detention any
the less a violation of article 22 (4) (a) after the deletion of old section
12. It is a fallacy to treat what was a lawful detention under sub-clause (b) as
being no detention at all for purposes of sub-clause (a).
Detention is a hard physical fact, and the
total period of detention of the petitioners having far exceeded three months
without an Advisory Board having reported within three months that there were
sufficient grounds there for, it could not lawfully be continued under article
22 (4)(a).
Constitutional provisions regarding
fundamental rights cannot be circumvented by resorting to legal fictions.
It was said that if the petitioners had been
released on 22nd February, 1951, and re-arrested and detained 627 immediately
thereafter under the new Act such detention would have been valid. But, for
proceeding in that manner the enactment of section 9 (2)(a)and section 12 (1)
would be unnecessary. Parliament has, however, adopted a different mode of
proceeding by providing for the continuance of detention orders in force at the
commencement of the new Act on the basis that they should have effect as if
they had been made under the new Act. The resulting position must, therefore,
be dealt with only on that basis and not on any other hypothetical footing.
The Attorney-General, however, contended in
the alternative that the constitutional validity of section 9 (2) (a) and
section 12 (1) of the new Act could be sustained under article 22 (4) (b) which
has been held by a majority of the Judges in A.K. Gopalan v. The State of
Madras (1) to be a distinct and independent provision authorising preventive
detention for a period longer than three months in accordance with a law made
by Parliament under sub-clauses (a) and (b)of clause (7) of article 22. The
Attorney-General claimed that the aforesaid provisions were such a law, none
the less because Parliament may have intended to make a law within article 22
(4) (a) by providing for a review by an Advisory Board in all cases of
preventive detention. On a question of vires, the intention of the Legislature
is immaterial, and I agree that a provision for an Advisory Board is not a
hall-mark which stamps a preventive detention law as one necessarily falling
within sub-clause (a) of clause (4), so as to make its constitutional validity
determinable exclusively with reference to the requirements of that subclause.
The law could still be upheld if it fulfilled the conditions laid down in
sub-clause (b) of clause (4). Mr. Nambiyar, however, submitted that the new Act
did not fulfil those conditions, for it is not a law made under subclauses (a)
and (b) of clause (7). The word "and" should be understood in its
ordinary conjunctive sense, and the new Act neither prescribes the
circumstances and classes referred to in sub-clause (a)nor the (1) [1950]
S.C.R. 88, (1) [1950] S.C.R.88.
628 maximum period of detention required to
be prescribed under sub-clause (b) of clause (7). The contention is devoid of
substance. The new Act can, in my opinion, be regarded as a law made
substantially in accordance with sub-clauses (a) and (b) of clause (7).
According to the majority view in Gopalan's case, sub-clause (a) of clause
(7)being an enabling provision, the word "and" should be understood
in a disjunctive sense. The combined effect of sections 9(2)(a) and 12(1) is to
provide, in a certain class of cases, namely, where detention orders were in
force at the commencement of the new Act, that the persons concerned could be
detained for a period longer than three months if an Advisory Board reports
that there are sufficient grounds for detention within ten weeks from the
commencement of the new Act, that is to say, without obtaining the opinion of
an Advisory Board before the expiration of the three months from the
commencement of the detention as provided in sub-clause (a) of clause (4). And,
although 'the new Act does not in express terms prescribe in a separate
provision any maximum period as such for which any person may in any class or
classes of cases be detained, it fixes, by extending the duration of the old
Act till the 1st April, 1952, an overall time limit beyond which preventive
detention under the Act cannot be continued. The general rule in regard to a
temporary statute is that, in the absence of special provision to the contrary,
proceedings which are being taken against a person under it will ipsofacto
terminate as soon as the statute expires (Craies on Statutes, 4th Edition, p.
347). Preventive detention which would, but
for the Act authorising it, be a continuing wrong, cannot, therefore, be
continued beyond the expiry of the Act itself. The new Act thus in substance
prescribes a maximum period of detention under it by providing that it shall
cease to have effect on a specified date. It seems to me, therefore, that
section 9(2)(a) and section 12(1) of the new Act substantially satisfy the
requirements of sub clause (b) of clause (4) of article 22, and cannot be declared
unconstitutional and void.
629 The objection to the validity of section
11(1) can be disposed of in a few words. The argument is that the discretionary
power given to the appropriate Government under that sub-section to continue
the detention "for such period as it thinks fit" authorises
preventive detention for an indefinite period, which is contrary to the
provisions of article 22(4). But, if, as already observed, the new Act is to be
in force only up to I st April, 1952, and no detention under the Act can
continue thereafter, the discretionary power could be exercised only subject to
that over-all limit. The objection therefore fails.
In the result the petitions are dismissed.
MAHAJAN J.--The question to be decided in
these petitions is whether the Preventive Detention (Amendment) Act, 1951, or
any part thereof is invalid and whether the petitioners who have been detained
are entitled to a writ in the nature of habeas corpus on the ground that their
detention is illegal.
The Act was enacted by Parliament on the 27th
February, 1951, and according to its express terms will cease to have effect on
the 1st April, 1952, save as regards things done or omitted to be done before
that date.
The point that has been canvassed before us
is that sections 9 (2)(a) and 12 of the Act are invalid as these infringe the
fundamental rights conferred under articles 21 and 22 of Part III of the
Constitution. Section 9 of the Act as amended reads as follows :-"(1) In
every case where a detention order has been made under this Act, the
appropriate Government shall, within six weeks from the date specified in
subsection (2) place before an advisory board constituted by it under section 8
the grounds on which the order has been made and the representation, if any,
made by the person affected by the order, and in case where the order has been
made by an officer, also the report made by such officer under sub-section (a)
of section 3.
81 630 (2) The date referred to in
sub-section(1) shall be-(a) in every case where at the commencement of the
Preventive Detention (Amendment) Act, 1951, a person is under detention in
pursuance of a detention order made under sub-clause (i) or (ii) of clause (a)
of sub-section (1) of section 3, the date of commencement of the said Act; and
(b) in every other case the date of the detention order.'' Section 12 is in
these terms :-"For the avoidance of doubt it is hereby declared-(a) every
detention order in force at the commencement of the Preventive Detention
(Amendment) Act, 1951, shall continue in force and shall have effect as if it
had been made under this Act as amended by the Preventive Detention (Amendment)
Act, 1951; and (b) nothing contained in sub-section (a) of section 1, or
sub-section (1) of section 12 of this Act as originally enacted shall be deemed
to affect the validity or duration of any such order." Mr. Nambiar for the
detenus challenged the vires of these sections on the following grounds: (1)
That article 22 (4) of the Constitution limits the legislative power of
Parliament and State legislatures in respect of preventive detention laws in
the matter of duration of the period of detention and provides that no law of
preventive detention can authorise the detention of a person for a longer
period than three months without the intervention of an advisory board and
without obtaining its opinion within three months.
The amending Act, 1951, by section 9
authorizes detention for a period longer than three months without the opinion
of the advisory board having been obtained within the said period of three
months from the date of the actual detention in respect of persons detained
under Act IV of 1950 as it originally stood and it thus infringes the
fundamental right conferred by article 22(4). (2) That Parliament in exercise
of powers conferred on it under article 22(7) having prescribed in section 12
of Act IV 631 of 1950 a maximum period of one year for detention in certain
classes of cases without obtaining the opinion of the advisory board, that
period of one year became a part of the content of the fundamental right
conferred under article 22(4) of the Constitution. Sections 9 and 12 of the
amended Act contravene this fundamental right inasmuch as they authorize
detention of persons who were detained under orders passed under section 3 (1)
(i) and (ii) of Act IV of 1950 beyond the period of one year prescribed
therein, and are therefore void. (3) That Parliament has no authority to alter
the period of one year prescribed by it by virtue of authority given to it under
article 22(7) (b) of the Constitution so as to affect the eases of persons
detained under Act IV of 1950. (4) That the Constitution does not envisage
detention for an indefinite period and that inasmuch as the amended Act has
failed to provide a maximum period for the detention of a person, it is
repugnant to the Constitution and is void; that it was obligatory on Parliament
while making the law providing for preventive detention to fix the maximum
period for such detention. (5) That the provisions of these sections infringe
article 21 of the Constitution inasmuch as they authorize detention contrary to
procedure established by law (Act IV of 1950) in respect of detentions under
that Act, because under established procedure detention beyond a period of one
year was void. For the ,reasons given above it was contended that as in the
case of the petitioners the maximum period of one year under section 12 of Act
IV of 1950 had expired on 27th February, 1951, they were entitled to their
release.
For a proper appreciation of the points urged
by the learned counsel and the manner in which they were combated by the
learned Attorney-General, it is necessary to shortly state the nature of the
relevant amendments introduced by the-amending Act in the Preventive Detention
Act, IV of 1950. In section 8 of Act IV of 1950, which concerns the
constitution of advisory boards, the new Act has provided that the board shall
consist of three persons instead of two except in cases 632 where before the
commencement of the amended Act reference had already been made to an advisory
board. Section 9 of Act IV of 1950 has been substituted by section 9 of the
amending Act and it gives the benefit of the advisory board to all classes and
cases of persons, who under Act IV of 1950 were not entitled to that benefit.
It makes it obligatory on government to place all these cases, like all other
cases, within six weeks from a prescribed date before an advisory board. In
section 10 the amended Act makes it obligatory on the advisory board to submit
its report to the government within ten weeks of the date specified under
section 9 and it also authorizes the advisory board to call for such
information as it deems necessary from government and from the person concerned
and it empowers it to give a hearing to the detenuif in any particular case it
considers it essential. Section 11 makes the opinion of the advisory board
binding on government. It also authorizes government to continue the detention
of persons for such period as it thinks fit in cases where the opinion of the
board is in favour of the continuance of detention. Section 12 provides that
orders of detention in force at the commencement of the amended Act will be
deemed to have been made under this Act.
A new section, 14, has been introduced in Act
IV of 1950 and it authorizes temporary release of persons detained.
The provisions of the amended Act are thus a
great improvement on the original Act inasmuch as they provide a greater
opportunity to the detenus of proving their innocence than they had under the
original Act. The detention of a person without the case being referred to the
opinion of an advisory board constituted of independent persons has been completely
done away with, except for a period of three months provided for in article
22(4) of the Constitution.
What the amended Act has in substance done is
that instead of the cases of persons preventively detained being considered by
ordinary courts of law, a special tribunal designated as an advisory board and
consisting of men of high judicial experience has been given authority 633 to
examine their cases within a prescribed period and the decision of that
authority has been made binding on government. This tribunal is obviously no
substitute for a court of law but a provision like this is in the nature of a
substantial solatium in cases of preventive detention wherein ordinarily the
detaining authority is the judging authority as well.
Shortly stated, Mr. Nambiar's attack on these
beneficial provisions and concerning their vires is based principally on the
method adopted by the draftsmen of the Act for switching over the detentions
which were being continued under section 12 of Act IV of 1950 and which were
valid by virtue of the constitutional provisions contained in article 22(4) (b)
of the Constitution to the constitutional provisions contained in article
22(4)(a)so that they may be given the benefit of an advisory board's opinion.
His grievance is that in doing so the amended statute has enlarged the period
of three months provided under article 22(4) for a report of the advisory board
and has extended the period of one year mentioned in section 12 of Act IV of
1950. This argument is based on the assumption that the period of one year
mentioned in section 12 of Act IV of 1950 was an immutable and unalterable one
and that Parliament could not amend section 12 of the Act in any manner
whatsoever once having enacted it. I am unable to accept this contention. It
seems to me, that it was open to Parliament to amend section 12 and substitute
another maximum for the period of one year mentioned therein. If Parliament had
recourse to that alternative, then in my opinion, the petitioners could have no
possible grievance as regards the vires of the new legislation. As regards the
period of three months, it was essential to fix some date from which that
period had to be calculated in respect of cases which were previously governed
by section 12 of Act IV of 1950. Under that section they did not have the
benefit of the advisory board and when the new law gave them that benefit, a
terminus quo had to be fixed for the period of three months during which the
advisory board had to submit its report. The amended Act 634 achieved this by
prescribing in these specified classes of cases the date of the commencement of
the amended Act as the date from which this period was to begin and by section
12 it provided that all detentions continuing at the date of the commencement
of the amended Act shall be deemed to be detentions under the amended Act.
After a careful consideration of the argument
of Mr. Nambiar I have reached the conclusion that there is considerable force
in the reply made to it by the learned Attorney-General. He contended that
article 22(4) provides that no law providing for preventive detention shall
authorize detention of a person for a longer period than three months and that
the amended Act has not in any manner infringed this provision; on the other
hand, it provides that the advisory board must make its report to the
government within ten weeks. It was urged that in order to judge the vires of
the amended Act it was not relevant to take into consideration detention of
persons validly detained under different statute and that its vires must be
adjudged on its own provisions and not with reference to what has actually
happened under another law. It was frankly conceded that if Parliament or a
State legislature passed legislation in a manner which amounted to a fraud on
the Constitution inasmuch as those enactments were passed with the purpose of
defeating the constitutional provisions, then those laws could be attacked on
that ground but not on the ground of their vires, that in the present case no
such argument had been taken or could be taken and that being so, the contention
of Mr. Nambiar was not justified.
In my opinion, the statute as framed does not
in any way contravene or abridge either the provisions of article 21 or of
article 22. It was open to Parliament, as already observed, to alter the
maximum period of detention mentioned in section 12 of Act IV of 1950 and to
enhance it. It was also open to government to release these detenus after the
expiry of one year and to serve fresh orders of detention on them after their
release under the amended Act. If that 635 had been done, no question could
possibly be raised that the period of three months provided for in article
22(4) of the Constitution had in any way been affected. Instead of going
through that form of ceremony, Parliament by section 12 of the amended Act
provided that all detention orders in force under Act IV of 1950 be treated as
detention orders under the amended Act. By the effect of this section the detention
of all such persons becomes a fresh detention under the new law, with the
result that nothing in the amended statute can be said to abridge the
fundamental right conferred by article 22(4) of the Constitution. It was argued
that the amended statute is not a new and an independent statute and that in
spite of the amendments it remains the same statute as was passed in 1950, and
that the detention of the petitioners is under the same law of preventive
detention and it therefore offends against article 22(4) of the Constitution
and that it virtually amounts to tacking of the period of detention under one
Act to the period of detention under another Act and as such amounts indirectly
and substantially to an infringement of the fundamental right. In my opinion,
this contention, though attractive, is without force. Technically speaking, an
amended statute remains the same statute as originally enacted but from that
proposition it does not follow that the law contained in the amended statute is
the same law as was contained in the original one. Section 9 of the original
Act has been substituted by section 9 of the amended Act and declares a new law
and it is not a re-enactment of the law as was contained in the earlier
statute.
Section 12 of the original statute has been
completely repealed and no longer exists. The law declared by that section has
been abrogated. The law declared by section 12 of the amended Act is in the
nature of a substituted provision. It seems to me that the law declared by the
amended statute is not the same law as was declared by the original statute and
to that extent the amended statute is in the nature of a new and independent
statute. The petitioners are being detained today by 636 force of the
provisions contained in sections 9 and 12 of the amended Act and not under the
law that was passed in 1950, as by repeal of section 12 of that Act their
detention under it technically terminated. The new law admittedly standing by
itself does not authorize detention of any person beyond a period of three
months except in the manner provided by article 22(4) of the Constitution. No
question whatever arises of tacking of the period of detention under one law to
the period of detention under another law, inasmuch as the detention under the
earlier law automatically terminates with the repeal of section 12 of Act IV of
1950.
For the reasons given above, the first
contention of Mr. Nambiar fails.
In view of the above decision it is
unnecessary to consider the alternative argument of the learned Attorney General
to the effect that in case it is held that section 9 contravenes article 22(4)
(a) of the Constitution, it is a valid law under article 22(4) (b) of the
Constitution and hence the order of detention is legal. Mr. Nambiar's contention
to the effect that in case the petitioners' detention is regarded as a fresh
detention under the amended Act, then it is necessary to serve them with fresh
grounds of detention does not appear to me to be well founded. The point was
not raised in the petitions and no argument was addressed to us that any right
under article 22(5) had been infringed. Moreover, as at present advised, I
think the contention has not got much force because of the clear provisions of
section 12 of the amended Act which treats every detention order having force
at the commencement of the amended Act as being deemed to continue under it.
When detention is not on any fresh grounds but on grounds already. served, any
default in observing the formality of again serving those very grounds on the
detenu cannot be said to be an infringement of the fundamental right under
article 22(5) of the Constitution.
The next contention of Mr. Nambiar that
Parliament having fixed the maximum period of detention in section 12 of Act IV
of 1950 under its powers contained 637 in article 22 (7) of the Constitution,
that maximum became apart of the content of fundamental right and sections 9
and 12 of the amended Act contravene this fundamental right inasmuch as these
authorize detention of the petitioners for a period beyond one year again, in
my opinion, is not sound.
In other words, the argument of the learned
counsel amounts to this that as soon as Parliament by law under article 22 (7)
prescribed a maximum period for which any person may be detained under any law
providing for preventive detention, then that period becomes a part of the
fundamental right conferred on a person under Part III of the Constitution.
The only method of adding to or subtracting
'from those rights is by an amendment of the Constitution in the manner
provided therein. By clause (7) of article 22 Parliament has not been
authorized to add to the fundamental rights. The contention of the learned
counsel is based on an erroneous assumption that article 22 in clause (7)
confers a fundamental right on a person; in its true concept it restricts to a
certain degree the measure of the fundamental right contained in clause 4 (a)
of the article.
The argument that Parliament has no authority
to alter the period of one year prescribed by it under article 22 (7) (b) of
the Constitution is again founded on an erroneous assumption that the clause
confers legislative power on Parliament. The ambit of the legislative powers of
Parliament is contained in article 245 of the Constitution read with the
entries in the Seventh Schedule. Article 22 of the Constitution restricts those
powers to a certain extent. It does not enlarge them. Clause (7), however, cuts
down these restrictions to a certain extent. Parliament having power to make
the law has also the power to alter or amend it, if it so chooses. It is
difficult to assent to the proposition of the learned counsel that if a person
is detained according to a law that existed at the time of his detention, then
in regard to him it is that and that law alone which matters and any change in
the 82 638 law, even if it has retrospective effect, cannot affect him in any
manner whatever.
The next point canvassed before us was that
the Constitution does not envisage detention for an indefinite period and that
it is obligatory on Parliament to provide a maximum period for detention of a
person under a law of preventive detention. In my opinion, this argument again
is not sound.
Emphasis was laid on the proviso to article
22 (4) (a) which enacts that nothing in the sub-clause shall authorize the
detention of any person beyond the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7), and it was urged that the word
"may" in article 22 (7) must be read in the sense of "must"
and as having a compulsory force inasmuch as the enactment authorizes
Parliament to prescribe by law a maximum period for detention, for the
advancement of justice and for public good, or for the benefit of persons
subjected to preventive detention. Reference was made to Maxwell on
"Interpretation of Statutes" (9th Edn., page 246) and to the
well-known case of Julius v.
Bishop of Oxford(1). Lord Cairns in that case
observed as follows :-``Where a power is deposited with a public officer for
the purpose of being used for the benefit of persons that power ought to be
exercised.'' In my opinion, clause (7) of'article 22, as already pointed out,
in its true concept to a certain degree restricts the measure of the
fundamental right contained in clause (4) (a) and in this context the rule
referred to by Maxwell has no application whatever. Moreover, the provision in
the Constitution is merely an enabling one and it is well settled that in an
enabling Act words of a permissive nature cannot be given a compulsory meaning.
(Vide Craies on Statute Law, p. 25,4). Be that as it may, the point is no
longer open as it has been concluded by the majority decision in Gopalan's
case(2). The learned Chief Justice at p. 119 of the report observed as follows
:-(1) 5 App. Cas. 214. (2) [1950] S.C.R. 88.
639 "Sub-clause (b) is permissive. It is
not obligatory on the Parliament to prescribe any maximum period. It was argued
that this gives the Parliament a right to allow a person to be detained indefinitely.
If that construction is correct, it springs out of the words of sub-clause (7)
itself and the court cannot help in the matter." Nothing said by Mr.
Nambiar is sufficient to persuade me to take a different view of the matter
than was taken in Gopalan's case(1). It may be pointed out that Parliament may
well have thought that it was unnecessary to fix any maximum period of
detention in the new statute which was of a temporary nature and whose own
tenure of life was limited to one year. Such temporary statutes cease to have
any effect after they expire, they automatically come to an end at the expiry
of the period for which they have been enacted and nothing further can be done
under them. The detention of the petitioners therefore is bound to come to an
end automatically with the life of the statute and in these circumstances
Parliament may well have thought that it would be wholly unnecessary to
legislate and provide a maximum period of detention for those detained under
this law.
The last point urged by Mr. Nambiar that the
provisions of the amended Act contravene the provisions of article 21 of the
Constitution does not impress me. The expression "procedure established by
law" was considered by the majority in Gopalan's case(1) as meaning procedure
prescribed by law. The petitioners have been detained in accordance with the
procedure prescribed by the amended statute and their detention therefore is in
accordance with procedure prescribed by law. The contention of Mr. Nambiar that
they are governed by the procedure contained in section 12 of Act IV of 1950 as
that was the procedure at the time when initially they were detained is, in my
opinion, unsound. It is open to Parliament to change the procedure by enacting
a law and that procedure becomes the procedure established by law within the
meaning (1) [1950] S.C.R. 88.
640 of that expression in article 21 of the
Constitution. Further, the present detention of the petitioners being by virtue
of section 12 of the amended Act a new detention under the amended Act, the
procedure prescribed by the amended Act is the procedure established by law
within the meaning of article 21.
For the reasons given above, in my opinion,
the Preventive Detention (Amendment) Act, 1951, is a valid statute and the
provisions impugned by Mr. Nambiar do not contravene the Constitution and the
petitioners are not entitled to their release merely on the ground that the
period of one year mentioned in section 12 of Act IV of 1950 has expired.
On the merits of the petitions it was urged
(1) that the grounds supplied to them were vague and insufficient to enable
them to make a proper representation, and (2) that their detention was mala
fide and on political and party considerations. There is no force whatever in
these contentions.
The result is that all these petitions are
dismissed and the rules are discharged. This order will have force in the case
of petitioners who have so far not been released by Government.
S.R. DAS J.--I agree that the petitions
should be dismissed and I do so substantially on the grounds stated by my
learned brother Mahajan.
BOSE J.--With the utmost respect I am unable
to accept the majority view. In my judgment, section 11 (1) of the amending Act
is ultra vires. The ground on which I hold it to be so was suggested by me in
the course of the arguments.
It was, however, not very fully dealt with
possibly because I expressed my view at a late stage and possibly because I did
so somewhat sketchily. But as I am ploughing a lonely furrow that, fortunately,
will not much matter.
Articles 21 and 22 confer the fundamental
right of personal liberty. The first is general, and as the meaning of the
words "procedure established by law" has 641 been thoroughly
discussed in Gopalan's case(1), I do not intend to cover that ground. But so
far as article 22 (4) is concerned, my opinion is that it confers a fundamental
right not to be kept under preventive detention beyond a certain period. The
extent of that period can vary but it can only be extended beyond three months
within certain fixed limits and subject to specified conditions.
Article 246 read with item 9 in List I and
item 3 in List III of the Seventh Schedule confers jurisdiction upon the Union
Parliament and the State Legislatures to make laws for preventive detention,
but article 22 (4) imposes restrictions. It says that" No law providing
for preventive detention shall authorise the detention of a person for a longer
period than three months," unless certain conditions are fulfilled.
The conditions are set out in sub-clause (a)
and subclause (b). Under the former, a law can provide for preventive detention
over three months provided (1) there is an advisory board of a certain
character, (2) the board is of opinion that there is sufficient cause for
longer detention, and (:3) the board reports before the expiration of the three
months. Then follows a further restriction which is contained in the proviso to
sub-clause (4). This states that-" nothing in this sub-clause shall
authorise the detention of any person beyond the maximum period prescribed by
any law made by Parliament under sub-clause (b) of clause (7)." Sub-clause
(b) of clause (7) reads as follows :"(7) Parliament may by law prescribe.
(b) the maximum period for which any person
may in any class or classes of cases be detained under any law providing for
preventive detention." The second set of conditions is given in sub-clause
(b) of clause (4). This sets out that a person can also be detained beyond
three months provided-(1) [1950] S.C.R. 88.
642 "such person is detained in
accordance with the provisions of any law made by Parliament under subclauses
(a) and (b) of clause (7)." I venture to underline the "and"
because, in my opinion, a lot turns on it. But I shall deal with that later.
Sub-clause (a) of clause (7) empowers
Parliament to prescribe" the circumstances under which, and the class or
classes of cases in which, a person may be detained for a period longer than
three months under any law providing for preventive detention without obtaining
the opinion of an advisory board in accordance with the provisions of
sub-clause (a) of clause (4)." In my opinion, these provisions confer a
fundamental right not to be detained beyond a certain period. The extent of
that period can vary but the maximum period of detention cannot exceed certain
fixed limits. Those limits are (a) in the first instance, three months: not,
(b)the maximum prescribed by Parliament under sub-clause (7) (b). In my
opinion, no law can be made authorising detention either under sub-clause (4)
(a) or (4) (b) unless a maximum period of detention is prescribed by Parliament
under sub-clause (7) (b).
I do not agree with the contention that the
word "may" in clause (7) means "must". I am not prepared to
depart from the usual meaning of words unless compelled to do so for
overwhelming reasons. In my opinion, Parliament is free to prescribe or not to
prescribe a maximum period under clause (7)(b). It cannot be compelled to do
so. But equally neither Parliament nor a State Legislature is compelled to
authorise preventive detention beyond three months. If, however, either wishes
to do so, then it is bound to conform to the provisions of either sub-clause
(a)or sub-clause (b) of clause (4) or both; and in the case of sub-clause (a)
the proviso is as much a part of the subclause as its main provision. If no
maximum limit is fixed under clause (7) (b), then the proviso cannot operate
and if it cannot operate, no legislative action 643 can, in my opinion, be
taken under clause (4) (a). If A is told by B that he may go to a bank and
withdraw a sum of money not exceeding such limit as may be fixed by C, it is
evident that until C fixes the limit no money can be withdrawn. C cannot be
compelled to fix a limit but if he chooses not to do so, the money cannot be
withdrawn. Equally, if A is told that he may withdraw money not exceeding a
limit which he himself may fix, there can, in my opinion, be no right of
withdrawal until he fixes the limit.
Look at it another way. A British General is
told by the Indian Government that he may travel from India to Burma quickly
and easily by plane. He is also told that he may in addition drive by car over
the hills and through the jungles provided he does not go beyond the confines
of any road made by the Burmese Government; and the Burmese Government is told
that it may, if it so chooses, put in a road at India's expense. It is fairly
obvious that the Burmese Government is not bound to make the road and it is
equally obvious that under these conditions the General will not be able to go
by car unless the road is made.
I realise that analogies are often inaccurate
and may be misleading. But these examples serve to illustrate the line of my
reasoning. In my opinion, the Constitution (a) tells the State Legislatures
that they may legislate for preventive detention beyond three months but not
beyond a limit which Parliament may fix and (b) tells Parliament that
Parliament itself may do the same thing provided the detention does not exceed
a maximum which it may itself fix.
There is no need to fix a maximum in either
event but if that is not done, then there can be no legislation under clause
(4) (a). Until the road is built there is no right of way.
The same limitation attaches to clause (4)
(b). Legislative action cannot be taken under this unless, first, the law is
made by Parliament and, second, it is made "under sub-clauses (a) and (b)
of clause (7)". I again venture to underline the "and" because,
in my opinion, "and" means and should mean "and" unless
there is 644 compelling reason to make it mean" or ". To my mind, not
only is there no compelling reason here but, on the contrary, there are
powerful reasons why it should be construed in its usual and normal sense. The
reasons are these.
Articles 21 and 22 confer a fundamental right
and give a fundamental guarantee. It is therefore the duty of the Court to see
that the right is kept fundamental and that the fullest scope is given to the
guarantee. It is our duty to ensure that the right and the guarantee are not
rendered illusory and meaningless. Therefore, wherever there is scope for
difference of opinion on a matter of interpretation in this behalf, the
interpretation which favours the subject must always be used because the right
has been conferred upon him and it is the right which has been made fundamental,
not the fetters and limitations with which it may be circumscribed by
legislative action. It ,is true the full scope and content of the right cannot
be determined without examining the boundaries within which it is to be
confined, and I agree that in interpreting these provisions equal weight must
be given to all the clauses; also that no one part can be treated with greater
sanctity than the rest.
But if, when all that is done, doubt still
remains, then the doubt must, in my judgment, be resolved in favour of the
subject and not of the State.
Brush aside for a moment the pettifogging of
the law and forget for the nonce all the learned disputations about this and
that, and "and" or "or ", or "may" and "must
".
Look past the mere verbiage of the words and
penetrate deep into the heart and spirit of the Constitution. What sort of
State are we intended to be ? Have we not here been given a way of life, the
right to individual freedom, the. utmost the State can confer in that respect
consistent with its own safety ? Is not the sanctity of the individual
recognised and emphasised again and again ? Is not our Constitution in violent
contrast to those of States where the State is everything and the individual
but a slave or a serf to serve the will of those who for the time being wield
645 almost absolute power ? I have no doubts on this score. I hold it therefore
to be our duty, when there is ambiguity or doubt about the construction of any
clause in this chapter on Fundamental Rights, to resolve it in favour of the
freedoms which have been so solemnly stressed..Read the magnificent sweep of
the preamble :"We, the people of India, having solemnly resolved to constitute
India into a Sovereign Democratic Republic and to secure to all its citizens:
Justice, Liberty, Equality, Fraternity." Read the provisions of the
chapter on Fundamental Rights :-"All citizens shall have the right
etc." * * * "No person shall be deprived Of his life or personal
liberty except according to procedure established by law." * * * No person
who is arrested shall be detained in custody without etc..." * * *
"No law providing for preventive detention shall authorise etc.
unless--" Read the provisions which circumscribe the powers of Parliament
and prevent it from being supreme. What does it all add up to ? How can it be
doubted that the stress throughout is on the freedoms conferred and that the
limitations placed on them are but regrettable necessities ? I do not doubt
that in construing the Constitution we must do so according to all the usual
well recognised canons of construction. I do not doubt that when the language
is plain, full effect must be given to it whatever the implications. All I
insist on is that when there is ambiguity or doubt and it is possible to take
either this view or that, then we must come down on the side of liberty and
freedom;
and I err in good company in so holding. Lord
Romer said as much in Liversidge's case(1) though he made an exception in the
(1) [1942] A.C. 206 at 280.
83 646 case of war legislation. How can it be
said that in this case there is no ambiguity and that there is no room for
doubt ? When I am asked to hold that "and" means "or" and
that "may" means "must", how can it be said that there is
no room for difference of opinion? When I am told that-"no law providing
for preventive detention shall authorise the detention of a. person for a
longer period than three months" unless there is an Advisory Board etc.,
and even then not beyond "the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7)" how can it be said that
there iS no doubt about the intention and that this clearly and unambiguously
means that the detention can be for an indefinite period even under a State law
if Parliament does not choose to act under clause (7)(b) ? To my mind, there is
ambiguity and there is room for doubt.
I feel that the people of India chose for
themselves the free way of life and that they entrusted to Parliament, which
represents their will, the duty of satisfying itself that any limitations
hereafter to be placed on the freedoms conferred are necessary and essential
and that these limitations will not exceed such limits as Parliament itself
shall determine solemnly and deliberately, after anxious scrutiny and dutiful
care. I cannot bring myself to believe that the framers of our Constitution
intended that the liberties guaranteed should be illusory and meaningless or
that they could be toyed with by this person or that. They did not bestow on
the people of India a cold, lifeless, inert mass of malleable clay but created
a living organism, breathed life into it and endowed it with purpose and vigour
so that it should grow healthily and sturdily in the democratic way of life,
which is the free way. In the circumstances, I prefer to decide in favour of
the freedom of the subject.
I am not hampered here by considerations of
war necessity or emergency legislation where some authorities hold that the
canons of construction are different 647 and that allowance must be made in
favour of the State for the imperfections of language used in legislation which
had to be drafted and enacted in a desperate hurry with the State in dire and
immediate peril. I am construing a Constitution which was hammered out solemnly
and deliberately after the most mature consideration and with the most anxious
care. I feel bound, therefore, when there is ambiguity or doubt, to resolve it
in favour of what I conceive to be the free way of a Sovereign Democratic
Republic. After all, who framed the Constitution and for whose benefit was it
made ?,--not just for those in brief authority, not only for lawyers and
dialecticians but for the common people of India. It should therefore be
construed, when that can be done without doing violence to the language
employed, in a simple straightforward way so that it makes sense to the man in
the street, so that the common people of the land can follow and understand its
meaning. To my mind, the whole concept of the Constitution is that after years
of bitter struggle the citizens of India are assured that certain liberties
shall be guaranteed to them and that these liberties shall not be curtailed
beyond limits which they and all the world. can know and which can Only be
fixed by the highest authority in the land, Parliament itself, directly and
specifically after affording opportunity for due deliberation in that august
body. I would struggle hard against any interpretation which permitted evasion
of those important limitations and which permitted those hardwon liberties to
be curtailed by some accidental side wind which allows virtual delegation of
the responsibility for fixing the maximum limits which Parliament is empowered
to fix, to some lesser authority, and worse, for fixing them ad hoc in each
individual case, for that, in my opinion, is what actually happens, whatever
the technical name, when Parliament fixes no maximum and lesser authorities are
left free to decide in each case how long the individual should be detained. I
am clear that these are not matters which should be viewed technically or
narrowly but in the broad and liberal spirit in which they were conceived.
Bearing this in mind, I will 648 proceed to examine the impugned provisions of
the amending Act.
In my judgment, section 9 is good because it
confers a 8benefit and a privilege. It takes away nothing. It gives all detenus
the right to go before an Advisory Board for review of their cases. It confers
this right not only on those who may be detained in the future but also on
those already under detention. And further, it confers this right on those who
had no such right before. This is not an infringement of any fundamental right
nor does it contravene any article of the Constitution; therefore Parliament
was free to legislate as it pleased regarding that. It was free artificially to
alter the starting point of the order of detention which is what it has done in
sub-section (2)(a).
That section, in my judgment, is intra vires.
So also is new section 12 which continues in
force existing detentions despite the expiry of the old Act and states that the
passing of the new Act shall not affect either the validity or duration of
orders passed under the old Act. It will be remembered that the detentions we
are considering in these cases were good under the old Act.
That Act prescribed a maximum limit, namely
one year, for this class of detention. In my opinion, Parliament had the right
to say in this particular manner, for the purpose of removing doubts, that
detentions already in force under that Act should continue in force for the
maximum period already prescribed. That, to my mind, is the force of the words
"continue," "validity" and "duration." That would
have been the result in any event but section 12 is there to remove possible
doubts.
Section 11 (2) is also good because here
again a benefit is conferred. Detenus who had no right to release on the advice
of an Advisory Board are here given this ' privilege.
Therefore, this is also intra vires. But
sub-section (1) is, to my mind, ultra vires. It is here that we find an
infringement of article 22(4). It reads:-"In any case where the Advisory
Board has reported that there is in its opinion sufficient cause for the
detention of a person, the appropriate Government may 649 confirm the detention
order and continue the detention of the person concerned for such period as it
thinks fit." This is word for word the same as section 11 of the old Act.
It does not prescribe a maximum limit.
Now section 11 replaces sections 11 and 12 of
the old Act. The amending Act directs that new section 11 be substituted for
old sections 11 and 12. Old section 12 had prescribed a maximum limit of one
year in certain classes of cases. That is done away with in the new Act. As
regards the rest, neither the old Act nor the new prescribes any limit for
other classes of detention. That, in my opinion, not only contravenes article
22 (4) but in effect shifts the responsibility for prescribing a maximum to the
executive authorities of each State and allows them to do it ad hoc in each
case. I am not speaking technically at the moment. I am viewing it broadly as
the man in the street would. I am placing myself in the position of the detenu
and looking at it through his eyes. The niceties of the law do not matter to
him. He does not care about grammar. All that matters to him is that he is
behind the bars and that Parliament has not fixed any limit in his kind of case
and that local authorities tell him that they have the right to say how long he
shall remain under detention. I cannot bring myself to think that this was
intended by the Constitution. The powers given to Parliament are ample. The
safeguards for the safety of the State are all there. In the last resort,
immediate action can be taken under the emergency provi sions. Therefore, when
Parliament and the State Legislatures are told that they cannot authorise
preventive detention beyond three months unless Parliament does this and that,
I am of opinion that the responsibility to do these things is on Parliament
itself and that in this particular matter there can be no delegation of
authority. The Constituent Assembly has entrusted this particular matter to the
care of Parliament itself and has made this Parliament's special
responsibility. The country is therefore entitled to receive the benefit of the
mature judgment, wisdom and patriotism of that august body.
650 I am not doubting Parliament's general
powers of delegation. But, in my opinion, these powers are circumscribed and
each case must be judged upon its own circumstances. As this matter is under
consideration in another case and as mine is a dissenting voice here, all I
need say in this case is that in my judgment this is not one of the matters
which can be delegated.
It was said that all this is irrelevant
because a maximum limit has in fact been fixed in the present instance.
It was argued that the life of this Act has
only been fixed for one year and that the life of the old Act was also only one
year and that this in effect fixes a maximum. I am aware that there is high
authority for this view and I venture to dissent with the utmost reluctance,
but with the greatest respect I find myself unable to agree. ' In the first
place, I cannot agree that the maximum limit which Parliament is authorised to
fix can.be fixed in this indirect way. What Parliament is empowered to do under
article 22(7) (b) is to prescribe--, "the maximum period for which any person
may in any class or classes of cases be detained."' It cannot do this by
saying that no person shall be detained beyond the 26th of February, 1952,
because that means that persons arrested on the 27th of February, 1951, can be
kept under detention for a year while those arrested on the 25th of February,
1952, can only be detained for one day. That, in my judgment, is not what is
meant by prescribing a maximum period.
In the next place, when Parliament is
authorised to do this, it is expected to do so consciously and deliberately
after giving the matter due and mature consideration. It is not possible to say
that Parliament had this provision in mind and intended to act under it when it
merely fixed the duration of the Act.. Had the matter been properly discussed
and placed before Parliament in the way it should have been, it is conceivable
that it might have considered that the maximum period of detention should not
exceed, say, six months though the duration of the Act should be one 651 year.
In other words, that persons could continue to be arrested so long as the Act
was in force but they could not be kept under detention for more than six
months. With the utmost respect, I cannot agree that functions so solemnly
entrusted to the care of Parliament under these fundamental clauses can be
discharged unconsciously.
In the third place, I cannot agree that these
detentions would come to an end with the expiry of the Act. The rule in the
case of temporary Acts is that"as a general. rule, and unless it contains
some special provision to the contrary, after a temporary Act has expired no
proceedings can be taken upon it, and it ceases to have any further effect.
Therefore, offences committed against temporary Acts must be prosecuted and
punished before the Act expires." (Craies on Statute Law, 4th edition,
page 347).
But transactions which are concluded and
complete before the Act expires continue in being despite the expiry. See
Craies on Statute Law, page 348, and 31 Halsbury's Laws of England (Hailsham Edition),
page 5 13. I take this to mean that if a man is tried for an offence created by
a temporary Act and is found guilty and sentenced to, say, five years'
imprisonment, he would have to serve his term even if the Act were to expire
the next day. In my opinion, the position is the same in the case of
detentions. A man, who is arrested under a temporary detention Act and-validly
ordered to be detained for a particular period, would not be entitled to claim
release before his time just because the Act expired earlier.
Then again. The Act' we are considering has
special provision to the contrary. Section 11 ( 1 ) empowers either a State or
the Union Government to order the detention of a person "for such period
as it thinks fit". If this provision is not ultra vires, then the Act in
express terms permits the appropriate Government to order a detention which
shall endure beyond the life of the Act itself, and unless the fundamental
provisions of the Constitution can be called in aid, there is nothing to prevent
Parliament from enacting such a 652 law. Therefore, the mere fact that the Act
under consideration is to expire on the 26th of February, 1952, does not, in my
opinion, mean that detentions under it must necessarily come to an end on that
date. That in turn means that no maximum period has been prescribed even
indirectly.
Looked straight in the face, what does the
decision of the majority upholding the validity of section 11 (1) import if it
is pushed to its logical conclusion ? To me it spells just this. The
Constitution tells all persons resident in the land-"Here is the full
extent of your liberty so far as the length of detention is concerned. We
guarantee that you will not be detained beyond three months unless Parliament
otherwise directs, either generally or in your particular class of case; but we
empower Parliament to smash the guarantee absolutely if it so chooses without
let or hindrance, without restriction. Though we authorise Parliament to
prescribe a maximum. limit of detention if it so chooses, we place no
compulsion on it to do so and we authorise it to pass legislation which will
empower any person or authority Parliament chooses to name, right down to a
police constable, to arrest you and detain you as long as he pleases, for the
duration of your life if he wants, so that you may linger and rot in jail till
you die as did men in the Bastille." In the absence of restrictions
Parliament undoubtedly has these powers, for it can legislate about preventive
detention. But if you remove the restrictions, what is left of the fundamental
right ? My concept of a fundamental right is something which Parliament cannot
touch save by an amendment of the Constitution. The full content of the right
can be as small or as narrow as you please, but unless there is a residue which
can answer that test, there is to my mind nothing fundamental. Now, I have no
doubt that a fundamental right regarding the length of detention was intended
to be conferred. It would be pointless to make the provision about three months
and place it in the chapter on Fundamental Rights if that were not so; so also
there would be no point in the 653 elaborate provisions regarding this in
clauses (4) and (7).
A simple clause saying that no detention
shall exceed three months "unless Parliament otherwise directs" would
have met the case. It is therefore clear to my mind that something fundamental
regarding the length detention which Parliament could not touch save by
amendment of the Constitution was intended to be conferred. But if section 11
(1) is upheld, what is there left which is beyond the reach of Parliament ?
Parliament has here in effect said that there need be no general limit to the
duration of detentions and that lesser authorities can fix the duration in each
individual ease and are free to detain for as long as they please. If that is
so, then what is there left of anything fundamental regarding the maximum
length of detention ? To my mind, the whole object of the elaborate provisions
in clauses (4) and (7) is to place restraints on powers regarding the length of
indefinite and arbitrary detentions which would otherwise be absolute.
For these reasons, I am of opinion that
section 11(1) is ultra vires. My only hesitation has been on the score of Gopalan's
case(1). I have searched long and anxiously to see whether this question is
concluded there and whether my hands are tied. After considerable study of the
decision, I have reached the conclusion that I am not bound.
There were six Judges there. The present Act,
the amending Act of 1951, was not under consideration, but section 11 of the
old Act,. which corresponds to section 11 (1)of the new, was considered. But
only two Judges, namely, my Lord the Chief Justice and my brother Mahajan,
dealt with this section directly. Their views are directly counter to mine.
They expressly hold that section 11 of the old Act is intra vires. That means.
that section 11 (1) of the present Act would also have to be upheld on their
view. But the other four Judges did not discuss the vires of section 11 at all.
They concentrated their attention on sections 12 and 14 of the old Act. It is
true my (1) [1950] S.C.R. 88.
84 654 brother Das made a general observation
at the end of his judgment that in his view "the impugned Act is valid law
except as to section 14" but he did not expressly consider section 11. In
the circumstances, I do not think Gopalan's case concludes the matter.
It is perhaps ironical that I should struggle
to uphold these freedoms in favour of a class of persons who. if rumour is to
be accredited and if the list of their activities furnished to us is a true
guide. would be the first to destroy them if they but had the power. But I
cannot allow personal predilections to sway my judgment of the Constitution. As
Lord Justice Scrutton remarked in Rex v. Home Secretary `` It is, indeed, one
test of belief in principles if you apply them to cases with which you have no
sympathy at all.'' and as Mr. Justice Holmes of the United States Supreme Court
said, speaking of the American Constitution, "If there is any principle of
the Constitution that more imperatively calls for attachment than any other it
is the principle of free thought--not free thought for those who agree with us
but freedom for the thought that we hate.." I respectfully dissent from
the majority view and consider that section 11 (1) is ultra vires. It follows,
in my view, that the present detentions are bad. I am of opinion that the
petitioners in these cases are entitled to immediate release.
Petitions dismissed.
Agent for the petitioner in Petition No. 303:
Subrahmanyam.
Agent for the Petitioners in Petitions Nos.
618, 619, 621,622 and 624 to 631: V.P.K. Nambiyar.
Agent for the State of Madras: P.A. Mehta.
Agent for the State of Assam: Naunit Lal.
Agent for the Union of India: P.A. Mehta.
(1) (1923) L.J.K.B, 797.
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