Dattatreya Moreshwar Pangarkar Vs. The
State of Bombay & Ors [1952] INSC 18 (27 March 1952)
DAS, SUDHI RANJAN SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION: 1952 AIR 181 1952 SCR 612
CITATOR INFO :
D 1954 SC 236 (38) R 1955 SC 160 (8) R 1958
SC 163 (12,40,41,42) E&D 1959 SC 65 (10) R 1961 SC1762 (25) R 1962 SC 113
(32) R 1964 SC1823 (4,27,32) RF 1965 SC 596 (11) RF 1967 SC1145 (16) R 1972
SC1242 (14) R 1972 SC1446 (8,9) D 1972 SC1924 (6,11,12) R 1974 SC1336 (8) R
1978 SC1155 (7) R 1982 SC 710 (106)
ACT:
Preventive Detention Act (IV of 1950), s. 11
(1)--Confirmation of detention order after report of Advisory Board--Period of
further detention not specified--Order not expressed to be in the name of
Governor--Validity of detention--Executive decisions--Mode of
expression--Constitution of India, Art. 166 (1) and (2)--Whether directory or
mandatory.
HEADNOTE:
Section 11, sub-s. (1), of the Preventive
Detention Act, 1950, provided that "in any case where the Advisory Board
has reported that there is in its opinion sufficient cause for the detention of
a person, the appropriate government may confirm the detention order and
continue the detention for such period as it thinks fit". The case of the
petitioner who was arrested under the Act was referred to the Advisory Board
and on receiving a report from the Board that in its opinion there was
sufficient cause for the detention of the petitioner the Government decided to
confirm the order of detention and this decision was communicated to the
District Magistrate by a confidential letter signed by the Assistant Secretary
to the Government for the Secretary to the Government. The material portion of
the letter ran thus :-"The Government is accordingly pleased to confirm
the detention order against the detenu. Please inform the detenu accordingly
and report compliance." In an application for a writ in the nature of
habeas corpus it was contended on behalf of the petitioner that his detention
was illegal: (i) because the Government had at the time of confirming the order
omitted to specify the period during which the detention should continue;
(ii)because the order of confirmation was not expressed to be made in the name
of the Governor as required by Art. 166 (1) of the Constitution:
Held, per PATANJALI SASTRI C.J., MUKHERJEA,
DAS and CHANDRASEKHARA AIYAR JJ. (MAHAJAN J. dissenting)--that the omission to
state the period of further detention while confirming the detention order
under s. 11 (1) of the Preventive Detention Act could not render the detention
illegal because, per PATANJALI SASTRI. C.J. and DAs J.--on a proper
construction ors. 11 (1), a specification of the period of continuation of the
detention is not necessary, however desirable it may be per MUKHERJEA and
CHANDRASEKHARA AIYAR, JJ.--though s. 11 (1) does contemplate that a period
should be mentioned during 613 which the further detention of the detenu is to
continue, mere omission to do so would not make the order a nullity and justify
release of the detenu.
Held also, per PATANJALI SASTRI C.J.,
MUKHERJEA, DAS and CHANDRASE KHARA AIYER, J J, that though the Preventive Detention
Act contemplates and requires the taking of an executive decision for
confirming a detention order under s.
11 (1), omission to make and authenticate
that executive decision in the form mentioned in Art. 166 will not make the
decision itself illegal for the provisions in that article are merely directory
and not mandatory. Per MUKHERJEA and CHANDRASEKHARA AIYAR, JJ.--Section 11(1)of
the Preventive Detention Act does contemplate a formal order of confirmation
and Art. 166(1) of the Constitution would apply to the case; clauses (1) and
(2) of the said article must however be read together. While cl. (1) relates to
the mode of expression of an executive order or instrument, cl. (2) lays down
the way in which such order is to be authenticated, and when both these forms
are complied with, an order or instrument would be immune from challenge in a
court of law on the ground that it has not been made or executed by the
Governor of the State. Even if cl. (1) is taken to be an independent provision
unconnected with cl. (2) and having no relation to the purpose indicated
therein, cl. (1) is directory and not imperative in its character.
MAHAJAN J.--Section 11 (I)of the Preventive
Detention Act contemplates that when the report of the Advisory Board reaches
the Government it has to come to a decision and pass an order in accordance
with that decision against the detenu to the effect that in view of the report
of the Advisory Board the detention order is continued for a certain period and
failure to fix the period of further detention would make the detention
illegal.
A.K. Gopalan v. The State ([1950] S.C.R. 88),
Makhan Singh Tarsikha v. The State of Punjab ([1952] S.C.R. 368), S. Krishnan
v. The State of Madras ([1951] S.C.R. 621), Chakar Singh v. The State of Punjab
(Petition No. 584 of 1951) and J. K. Gas Plant Manufacturing Co. Ltd. and
Others v. KingEmperor ([1947] F.C.R.141) referred to.
ORGINAL JURISDICTION. Petition (No. 683 of
1951) under Art. 32 of the Constitution of India for a writ in the nature of
habeas corpus. The facts are set out in detail in the judgment.
Bawa Shiv Charan Singh (amicus curiae) for
the petitioner.
M.C. Setalvad, Attorney-General for India
(Jindra Lal, with him) for the respondents.
614 1952. March 27. The Court delivered
judgment as follows:-DAS J. --This is an application under article 82 of the
Constitution for the issue of a writ in the nature of habeas corpus and for the
immediate release of the petitioner who is alleged to have been kept in illegal
detention in Baroda Central Prison.
On February 15, 1951, the petitioner was
arrested under an order made on February 13, 1951, by the then District
Magistrate, Surat, in exercise of powers conferred on him by the Preventive
Detention Act, 1950. A copy of the said order was served on the petitioner at
the time of his arrest. On the same date grounds of detention were served on
the petitioner as required by section 7 of the Act. It was specifically
mentioned in the grounds that it was not in the public interest to disclose
further facts. The petitioner moved the High Court of Bombay under article 226
of the Constitution complaining that his detention was illegal and praying that
he should be forthwith released. In that application one of the points urged
was that the grounds in support of the detention were false, vague and
fantastic and that the detention order was made in bad faith. Two affidavits
were filed on behalf of the State in support of the detention order. That
application was, on April 17, 1951, dismissed by the Bombay High Court. In the
meantime, the case of the petitioner was placed before the Advisory Board which
on Aprils, 1951, made a report stating that in its opinion there was sufficient
cause for the detention of the petitioner. According to the affidavit of
Venilal Tribhovandas Dehejia, Secretary to the Government of Bombay, Home
Department, filed in answer to the present application, this report of the
Advisory Board was placed before the Government and, on April 13, 1951, the
Government decided to confirm the order of detention. This decision was, on
April 28, 1951, communicated to the District Magistrate, Surat, in a
confidential letter in the terms following :-615 Confidential letter No. B.D.
II/1042-D (11) Home Department (Political) Bombay Castle, To 28th April, 1951.
The District Magistrate, Surat.
Subject:-Preventive Detention Act, 1950Review
of detention orders issued under the-Reference your letter No. Pol. 1187/P,
dated the 23rd February, 1951, on the subject noted above.
2. In accordance with section 9 of the Preventive
Detention Act, 1950, the case of detenu Shri Dattatreya Moreshwar Pangarkar was
placed before the Advisory Board which has reported that there is sufficient
cause for his detention. Government is accordingly pleased to confirm the
detention order issued against the detenu. Please inform the detenu accordingly
and report compliance.
3. The case papers of the detenu are returned
herewith.
Sd/-G, K. Kharkar, for Secretary to the
Government of Bombay, Home Department.
It also appears from the aforesaid affidavit
that Sri G.K. Kharkar who signed the letter for the Secretary to the Government
of Bombay, Home Department, was at the time an Assistant Secretary and, as
such, was, under rule 12 of the Rules of Business made by the Government of
Bombay under article 166 of the Constitution, authorised to sign orders and
instruments of the Government of Bombay.
The petitioner has now moved this Court under
article 32 of the Constitution complaining that he is being unlawfully
detained. The only question is whether he has been deprived of his personal liberty
in accordance with procedure established by law. He 80 616 is said to be
detained by the State in exercise of powers conferred on it by the Preventive
Detention Act, 1950, as amended in 1951. The State must, accordingly, satisfy
us that the procedure established by law has been strictly followed. Although a
supplementary petition has been filed in this Court complaining that the
grounds supplied to him are false, vague, lacking in particulars and
insufficient to enable the petitioner to make an effective representation
against the order of detention, it has not, however, been pressed before us by
learned counsel appearing as amicus curiae in support of the application. At
the hearing before us, learned counsel has confined his arguments to challenging
the validity of detention of the petitioner on two grounds, namely, (1) that
the State Government has failed to comply with the requirements of section
11(1) of the amended Act in that at the time of confirming the detention order
it omitted to specify the period during which the detention would continue, and
(2) that the order of confirmation is not in proper legal form, in that it is
not expressed to be made in the name of the Governor as required by article 166
(1) of -the Constitution.
Ground No. 1. The validity of this ground of
attack depends on a proper understanding of section 11(1) of the Preventive
Detention Act, which, as amended, runs as follows:-"(1) In any case where
the Advisory Board has reported that there is in its opinion sufficient cause
for the detention of a person, the appropriate Government may confirm the
detention' order and continue the detention for such period as it thinks
fit".
The argument is that the sub-section
contemplates a decision containing two things, namely, (1) a confirmation of
the detention order and (2) a direction for the continuation of the detention.
I do not think this argument is sound, for if the intention were that both the
things should be included in an order then the sub-section would have been
worded differently. It would have ended by saying that "the appropriate
617 Government may make an order confirming the detention order and continuing
the detention for such period as it thinks fit". Grammatically section 11
(1) confers two powers, namely (1)the appropriate Government may confirm the
detention order and (2) the appropriate Government may continue the detention
for such period as it thinks fit. The confirmation of the detention order
certainly contemplates the taking of an. executive decision, but the detenu
being already in custody and the detention order being confirmed his detention
continues automatically and, therefore, no further executive decision is called
for to continue the detention. It follows that it is not necessary to include a
direction for the continuation of the detention in the decision confirming the
detention order.
It is next suggested that the words
"such period" in the sub-section clearly imply that it is necessary
to specify the period during which the detention would continue, for if the
intention of Parliament were otherwise, the section would have stopped after
the words "may continue his detention". It is urged that if, as held
by this Court in Petition No. 308 of 1951 (Makha, Singh Tarsikka v. The State
of Punjab), it is illegal, after the amendment of the Act, to mention any
period of detention in the initial order of detention made under section 3 of
the Act and if no period of detention need be mentioned at the time of
confirmation under section 11 (1) then the appropriate Government will, after
confirmation, lose sight of the case and the detenu will be detained indefinitely.
It is suggested that if two constructions are possible, the one that advances
the interests of the subject should be adopted. I do not think that two
constructions are possible at all or that the suggested construction will be of
any advantage to the detenu for reasons which I proceed to state briefly.
There can be no two opinions that detention
without trial is odious at all times and that it is desirable, therefore, in
cases of preventive detention that a definite period of detention should, if
possible, be 618 specified. But whether the Act, on a true construction of it,
requires such a specification of period is an entirely different question and
to answer that question regard must be had to the actual language used in the
Act. If the intention of Parliament were that the period during which the
detention would be continued must be specified then the sub-section 11 (1)
would have empowered the appropriate authority to continue the detention for
such "period as it thinks fit to specify" instead of "as it
thinks fit".
Further, the notion that non specification of
the period will continue the detention for an indefinite period need not
oppress us unduly, because the Act itself being of a limited duration such
detention must necessarily come to an end on the expiry of the Act. In A.K.
Gopalan's case(1), Kania C.J. at page 126 said:-"It was argued that
section 11 of the impugned Act was invalid as it permitted the continuance of
the detention for such period as the Central Government or the State Government
thought fit. This may mean an indefinite period. In my opinion, this argument
has no substance because the Act has to be read as a whole. The whole life of
the Act is for a year and therefore the argument that the detention may be for
an indefinite period is unsound." To the like effect were the following
observations of Mahajan J. at page 232 :"Section 11 of the Act was also
impugned on the ground that it offended against the Constitution inasmuch as it
provided for preventive detention for an indefinite period.
This section in my opinion has to be read in
the background of the provision in subclause (3) of section 1 of the Act which
says that the Act will cease to have effect on 1st April, 1951".
These observations were made on section 11 of
the Act as it stood before the amendment of the Act. That section has been
substantially, if not verbatim. reproduced in section 11 (1) of the amended Act
and (1)[1950] S.C.R. 88.
619 accordingly the above observations will
apply to the present section 11 (1) with equal force and cogency. indeed in S. Krishnan
v. The State of Madras(1) Sastri J., as he then was, expressed himself as
follows in connection with the present section 11 (1):"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 29. (4). But, if as already observed, the new Act
is to be in force only up to 1st April, 1982, and no detention under the Act
can continue thereafter, the discretionary power could be exercised only
subject to that over-all limit." Two points clearly emerge out of these
observations as I comprehend them. The very argument as to the invalidity of
the section could not be raised at all except on the basis that the section, by
itself and on a true interpretation of it, permitted an indefinite detention.
In the second place, this argument was met by the Court, not by saying that
that was not the correct meaning of the section and that on the contrary the
words "such period" necessitated the fixation of a definite period of
detention but, by saying that the life of the Act being limited, the duration
of detention permitted by the section was in any event co-terminous with the
life of the Act and could not go beyond it. This answer of the Court makes it
clear that the Court fully recognised that the section, by itself and on its
true interpretation, sanctioned an indefinite detention but held that that contingency
had been averted by the fact that the Act itself was of a limited duration. It
is said that the section should be construed irrespective of whether it occurs
in a temporary statute or a permanent one, and it is urged that if the statute
were a permanent one the section, on the aforesaid interpretation, would have
permitted an indefinite detention. The answer is given by Mahajan J. in the (1)
[1951] S.C.R. 621 at p. 629.
620 following passage in his judgment in S.
Krishnan v. The Static of Madras (suprat) at page 639 with which I concurred
"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." For all I know, such drastic
and extensive power to continue the detention as long as it may think fit may
not be given by Parliament to the executive Government in a permanent statute.
But if it does think fit to do so, it will not be for the Court to question the
knowledge, wisdom or patriotism of the Legislature and to permit its dislike
for the policy of the law to prevail over the plain meaning of the language
used by the Legislature. Apart from this consideration, there is a period
specified in the sub-section itself, for as soon as the appropriate Government
will cease to think fit to continue the detention it will revoke the detention
order under section 13 and the period of detention will automatically come to
an end. Again, if the idea of indefinite detention were so repugnant as to
induce us to construe sub-section 11 (1) by reading into it the requirement
that the period of detention must be specified at the time the order of
detention is confirmed, it will lead us to a situation which cannot be
maintained in view of a decision of this Court. The section, it will be
noticed, does not authorise the appropriate Government to "continue the
detention for such period as it thinks lit from time to time." 621
Therefore, the power conferred on the appropriate Government by this
sub-section will be exhausted by its single exercise and it will not be
possible to extend the period of detention any longer. This view of the matter
will, however, run counter to our decision in Petition No. 584 of 1951, Chakar
Singh v. The State of Punjab, where it has been held that there is nothing in
section 11 (1) to prevent the appropriate Government from directing the
detention of a person to continue further so long as the period fixed by the
previous order has not expired and the person has not been released. According
to this decision the appropriate Government may direct the detention to
continue even after the expiry of the period fixed by the order confirming the
detention order or any subsequent order provided such directions are given
before the expiry of the period fixed by the immediately preceding order. From what
source does the appropriate Government derive its power to direct the further
continuation of the detention after having, in the order of confirmation, once
specified the period of detention ? Section 13 of the Act gives power to the
appropriate Government to revoke or amend a detention order which must mean the
initial order of detention under section 3 of the Act but not an order made
under section 11 (1) confirming a detention order or fixing a period of
detention. Therefore, the authority to extend the period of detention
previously fixed which, in view of our decision, must be held to exist, will
have to be derived from the very words "may continue such detention for
such period as it thinks fit". It follows, therefore, that the
specification of the period of detention does not destroy or abridge the wide
over-all power of the appropriate Government to direct the continuation of the
detention as long as it thinks fit. If the specification of the period of
detention is not at all sacrosanct and the appropriate Government may
nevertheless continue the detention as long as'it thinks fit to do so, why is
the specification of a period to be regarded as vitally or at all necessary ?
So far as the detenu is concerned, his detention Wilt 622 not be any more
definite and less irksome if it is open to the appropriate Government to
continue the detention by an indefinite number of orders made from time to time
until the expiry of the Act itself by efflux of time in the case of a temporary
statute or by its repeal in the case of a permanent Act. It is said that if we
insist on a specification of a definite period when the confirmatory order is
made and thereafter each time the period of detention is extended then the
appropriate Government will have to apply its mind to the case of the detenu
before it will make an order for further continuation of the detention, but
that if we say that no time need be specified, the appropriate Government will
lose sight of the case and the detenu will be detained indefinitely. I do not
see why we should impute such dereliction of duty to the appropriate
Government; but even if we do so and insist on the specification of the period
of detention we shall perhaps be driving the appropriate Government to fix the
longest permissible period of detention ending with the expiry of the Act
itself and then to lose sight of the case of the detenu. That, I apprehend,
will do no good to the detenu. Section 13 gives ample power to the appropriate
Government to revoke the detention order at any time and it is expected that it
will apply its mind to each case and revoke the detention order and release the
detenu as soon as it is satisfied that his detention is no longer necessary. In
any event, the considerations of hardship urged upon us may make it desirable
that a period of detention should be fixed but this cannot alter the plain
meaning of the language of the section. The Court is not concerned with any
question of policy. It has to ascertain the intention of the Legislature from
the language used in the Act.
In my judgment, on a proper construction of
section 11 (1), a specification of the period of continuation of the detention
is not necessary, however desirable one may consider it to be.
Ground No. 2: On this head the argument of
learned counsel for the petitioner is that no valid order of confirmation has
been made in proper legal form at all and that a confidential communication
from the 623 Home Department to the District Magistrate cannot be regarded as
an order under section 11(1)of the Act. Learned Attorney-General urges that
section 11 (1) of the Act contemplates only the taking of an executive
decision, namely. the confirmation of the detention order and contends that the
sub-section does not contemplate the making of a formal order. He draws our
attention to section 3 of the Act which expressly refers to an order of
detention and points out that section 11 (1) does not refer to any order of
confirmation. Reference may, however. be made to section 13 which authorises
the appropriate Government to revoke or modify the order of detention. In this
section also there is no reference to any order of revocation or modification
but nevertheless revocation or modification must imply an executive decision.
Under section 11 (1), as under section 13, the appropriate Government has to
apply its mind and come to a decision.Whether we call it an order or merely an
executive action makes no difference in the legal incidents of the decision.
Section 11 (1) plainly requires an executive decision as to whether the
detention order should or should not be confirmed. The continuation of the
detention as a physical fact automatically follows as a consequence of the
decision to confirm the detention order and, for reasons stated above, does not
require any further executive decision to continue the detention. It follows,
therefore, that the Preventive Detention Act contemplates and requires the
taking of an executive decision either for confirming the detention order under
section 11 (1) or for revoking or modifying the detention order under section
13. But the Act is silent as to the form in which the executive decision,
whether it is described as an order or an executive action, is to be taken. No
particular form is prescribed by the Act at all and the requirements of the Act
will be fully satisfied if it can be shown that the executive decision has in
fact been taken. It is at this stage that learned counsel for the petitioner
passes on to article 166 of the Constitution and contends that all executive
action of the Government of a State must be 624 expressed and authenticated in
the manner therein provided. The learned Attorney-General points out that there
is a distinction between the taking of an executive decision and giving formal
expression to the decision so taken. Usually executive decision is taken on the
office files by way of nothings or endorsements made by the appropriate
Minister or officer. If every executive decision has to be given a formal
expression the whole governmental machinery, he contends, will be brought to a
standstill. I agree that every executive decision need not be formally
expressed and this is particularly so when one superior officer directs his
subordinate to act or forbear from acting in a particular way, but when the
executive decision affects an outsider or is required to be officially notified
or to be communicated it should normally be expressed in the form mentioned in
article 166 (1). i.e., in the name of the Governor. Learned Attorney-General
then falls back upon the plea that an omission to make and authenticate an
executive decision in the form mentioned in article 166 does not make the
decision itself illegal, for the provisions of that article, like their
counterpart in the Government of India Act, are merely directory and not
mandatory as held in J.K. Gas Plant Manufacturing Co.
(Rampur) Ltd. and Others v. The
King-Emperor(1). In my opinion, this contention of the learned Attorney-General
must prevail. It is well settled that generally speaking the provisions of a
statute creating public duties are directory and those conferring private
rights are imperative. When the provisions of a statute relate to the
performance of a public duty and the case is such that to hold null and void
acts done in neglect of this duty would work serious general inconvenience or
injustice to persons who have no control over those entrusted with the duty and
at the same time would not promote the main object of the legislature, it has
been the practice of the Courts to hold such provisions to be directory only,
the neglect of them not affecting the validity of the acts done. The
considerations which weighed with (1) [1947] F.C.R. 141 (154-9).
625 their Lordships of the Federal Court in
the case referred to above in the matter of interpretation of section 40 (1) of
the 9th Schedule to the Government of India Act, 1935, appear to me to apply
with equal cogency to article 166 of the Constitution. The fact that the old
provisions have been split up into two clauses in article 166 does not appear
to me to make any difference in the meaning of the article. Strict compliance
with the requirements of article 166 gives an immunity to the order in that it
cannot be challenged on the ground that it is not an order made by the
Governor. If, therefore, the requirements of that article are not complied
with, the resulting immunity cannot be claimed by the State. This, however,
does not vitiate the order itself. The position, therefore, is that while the Preventive
Detention Act requires an executive decision, call it an order or an executive
action, for the confirmation of an order of detention under section 11 (1) that
Act does not itself prescribe any particular form of expression of that
executive decision. Article 166 directs all executive action to be expressed
and authenticated in the manner therein laid down but an omission to comply
with those provisions does not render the executive action a nullity.
Therefore, all that the procedure established
by law requires is that the appropriate Government must take a decision as to
whether the detention order should be confirmed or not under section 11 (1).
That such a decision has been in fact taken by the appropriate Government is
amply proved on the record. Therefore, there has been, in the circumstances of
this case, no breach of the procedure established by law and the present
detention of the petitioner cannot be called in question.
For the reasons stated above, in my opinion,
this application must fail.
PATANJALI SASTRI C.J.I agree with the
judgment just delivered by my learned brother Das and I have nothing to add.
MUKHERJEA J.--In my opinion this application
should be dismissed and I deem it proper to state 626 succinctly my own views
on the questions that have been raised in the case.
The validity of the detention of the
petitioner has been challenged before us on a two-fold ground. The first ground
urged is that it was imperative on the part of the appropriate Government, when
it confirmed the order of detention under section 11 (1) of the Preventive
Detention Act, to specify the period during which the detention was to continue;
and an omission to state the period vitiates the order.
The other contention raised is that the order
of confirmation not being expressed to be made in the name of the Governor, as
is required under article 166 (1) of the Constitution, is void and inoperative.
So far as the first ground is concerned, it
would be necessary to advert to the language of section 11 (1) of the Preventive
Detention Act which runs as follows :-"11. Action upon the report of
Advisory Board'(1) In any case where the Advisory Board has reported that there
is in its opinion sufficient cause for the detention of a person, the
appropriate Government may confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit." It is
to be noted that section 3 (1) of the Preventive Detention Act under which the
initial order of detention is made is worded differently in this respect and it
merely empowers the Central Government or the State Government, as the case may
be, to make an order, under the circumstances specified in the section,
directing that a person be detained; and nothing is said about the period for
which such detention should be directed. It is now settled by a pronouncement(1)
of this court that not only it is not necessary for the detaining authority to
mention the period of detention when passing the original order under section a
(1) of the Preventive Detention Act, but that the order would be bad and
illegal if any period is specified, as it might (1) Vide Makhan Singh Tarsikka
v. The State of Punjab, Petition No. 308 of 1951.
627 prejudice the case of the detenu when it
goes up for consideration before the Advisory Board. The Advisory Board again
has got to express its opinion only on the point as to whether there is
sufficient cause for detention of the person concerned. It is neither called
upon nor is it competent to say anything regarding the period for which such
person should be detained. Once the Advisory Board expresses its view that
there is sufficient cause for detention at the date when it makes its report,
what action is to be taken subsequently is left entirely to the appropriate
Government and it can under section 11 (1) of the Act "confirm the
detention order and continue the detention of the person concerned for such
period as it thinks fit." In my opinion, the words "for such period
as it thinks fit" presuppose and imply that after receipt of the report of
the Advisory Board the detaining authority has to make up its mind as to whether
the original order of detention should be confirmed and if so, for what further
period the detention is to continue, Obviously that is the proper stage for
making an order or decision of this description as the investigation with
regard to a particular detenu such as is contemplated by the Preventive
Detention Act is then at an end and the appropriate Government is in full
possession of all the materials regarding him. It could not have been in the
contemplation of the legislature that the matter should be left indefinite and
undetermined even then. This, in my opinion, is the reason for the difference
in the language of section 11 (1) of the Preventive Detention Act as compared
with that of section 3 (1) of the Act. I do not think that once the appropriate
Government in making the order under section 11 (1) specifies the period during
which the detention of the person concerned is to continue. it becomes functus
officio and is incapable of extending the detention for a further period at a
subsequent time if it considers necessary. In my opinion, section 13 of the Act
gives very wide powers to the detaining authority in this respect and it can
revoke or modify any detention order at any time it chooses and the power of
modification would 628 certainly include a power of extension of the period of
detention, provided such power is exercised before the period originally fixed
has expired and provided the extended period does not exceed the over-all limit
which is coextensive with the life or duration of the Act itself. This is quite
in accordance with the view taken by this court in Chakar Singh v. The State of
Punjab(1).
The question now is whether the omission to
state the period of further detention while confirming the detention order
under section 11 (1) of the Preventive Detention Act makes the detention
illegal ? The point is not free from doubt, but having regard to the fact that
the new Preventive Detention Act is a temporary statute which was to be in
force only up to the 1st of April, 1952. and has only been recently extended to
a further period of six months. and no detention under the Act can continue
after the date of expiry of the Act, I am inclined to hold that non-specification
of the further period in an order under section 11 II) of the Act does not make
the order of detention a nullity.
If no period is mentioned, the order might be
taken to imply that it would continue up to the date of the expiration of the
Act itself when all detentions made under it would automatically come to an
end. Of course, the appropriate Government is always at liberty to terminate
the order of detention earlier, if it considers proper, in exercise of its
general powers under section 13 of the Act. I am not much impressed by the
argument that the non-mentioning of the period in the order of confirmation is
likely to cause serious prejudice to the interests of the detenu. It may be
that if a period is mentioned, the attention of the Government is likely to be
drawn to the case near about the time when the period is due to expire and the
facts of the case may be reviewed by the appropriate authority at that time
before it decides to extend the detention any further; but it seems to me to be
clear from the provision of section 13 that the Act contemplates review of
individual cases by the (1) Petition No. 584 of 629 appropriate Government from
time to time irrespective of any period being mentioned in the order of
detention. It can legitimately be expected that the detaining authority would
discharge the duties which are imposed upon it, but even if it does not, there
is nothing in the law which prevents it from fixing the period of detention up
to the date of expiry of the Act itself, which is by no means a long one, and
in that case the Court would obviously be powerless to give any relief to the
detenu. It is perfectly true that an order for detention for an indefinite
period is repugnant to all notions of democracy and individual liberty, but the
indefiniteness in the case of an order made under section 11 (1) of the Preventive
Detention Act is in a way cured by the fact that there is a limit set to the
duration of the Act itself, which automatically prescribes a limit of time
beyond which the order cannot operate. In my opinion, section 11 (1) of the Preventive
Detention Act does contemplate that a period should be mentioned during which
the further detention of the detenu is to continue and the Government should
see that no omission occurs in this respect, but I am unable to hold that this
omission alone would make the order a nullity which will justify us in
releasing the detenu.
The other question for consideration is,
whether the order is invalid by reason of the fact that it has not been
expressed in the manner laid down in article 166 of the Constitution. Article
166 runs as follows :-"166 (1). All executive action of the Government of
a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and
executed in the name of the Governor shall be authenticated in such manner as
may be specified in rules to be made by the Governor, and the validity of an
order or instrument which is so authenticated shall not be called in question
on the ground that it is not an order or instrument made or executed by the
Governor.
630 (3) The Governor shall make rules for the
more convenient transaction of the business of the Government of the State, and
for the allocation among Ministers the said business in so far as it is not
business with respect to which the Governor is by or under this Constitution
required to act in his discretion." In the case before us the order
confirming the detention purports to be signed by Mr. G.K. Kharkar, for the
Secretary to the Government of Bombay, Home Department. The affidavit filed in
this case by V.T. Dehejia shows that Mr. Kharkar was then the Assistant
Secretary to the Home Department and was authorised under the rules framed
under article (3) of the Constitution by the Governor of Bombay to sign orders
and instruments for the Government of Bombay.
The order admittedly is not expressed to be
made in the name of the Governor and if article 166 (1) of the Constitution
applies to this case, it certainly does not fulfil the requirement of that
provision. To get round this difficulty the learned Attorney-General has put
forward a two-fold argument. He has argued in the first place that article 166
(1) of the Constitution applies to a case where the executive action has got to
be expressed in the shape of a formal order; and it is only such order that
requires authentication in the manner laid down in clause (2) of the article.
Section 11 (1) of the Preventive Detention
Act, it is said, does not necessitate the passing of a formal order at all.
It is enough if the detaining authority
decides by any form of executive action that the original order of detention
should be confirmed. The other argument put forward is that the provisions of
clauses (1) and (2) of article 166 are directory and not mandatory in the sense
that even if a particular order is not expressed or authenticated in the way
mentioned in these provisions, it would not be an ineffective or invalid order
provided it is proved to have been made by the proper authority to whom that
particular business has been allocated by the rules framed under clause (3) of
article 166. The only result of such omission may be that the order would not
enjoy an 631 immunity from challenge on the ground specified in clause (2) of
the article.
So far as the first point is concerned, it
seems to me to be quite correct to hold that article 166 (1) of the
Constitution is confined to cases where the executive action requires to be
expressed in the shape of a formal order or notification or any other
instrument. I cannot, however, agree with the learned AttorneyGeneral that
section 11 (1) of the Preventive Detention Act does not contemplate the passing
of a formal order. It is true that section 11 (1) does not speak of an order of
confirmation but when there is an initial order of detention made under section
3 of the Preventive Detention Act, it could normally be confirmed only by
passing another order. This would be clear from the provision of section 13 of
the Act which empowers the detaining authority to revoke or modify a detention
order any time it chooses. Neither revocation nor modification is possible
without any order being made to that effect and yet section 13 like section 11
(1) does not speak of an order at all. The first contention of the
Attorney-General therefore cannot succeed.
The other contention raised by the learned
AttorneyGeneral involves consideration of the question as to whether the
provision of article 166 (1) of the Constitution is imperative in the sense
that non-compliance with it would nullify or invalidate an executive action.
The clause does not undoubtedly lay down how an executive action of the
Government of a State is to be performed; it only prescribes the mode in which
such act is to be expressed. The manner of expression is ordinarily a matter of
form, but whether a rigid compliance with a form is essential to the validity
of an act or not depends upon the intention of the legislature.
Various tests have been formulated in various
judicial decisions for the purpose of determining whether a mandatory enactment
shall be considered directory only or obligatory with an implied nullification
for disobedience. It is unnecessary for our present 82 632 purpose to discuss
these matters in detail. In my opinion, article 166 of the Constitution which
purports to lay down the procedure for regulating business transacted by the
Government of a State should be read as a whole.
Under clause (a) the Governor is to make
rules for the more convenient transaction of such business and for allocation
of the same among the Ministers in so far as it does not relate to matters in
regard to which the Governor is required to act in his discretion. It is in
accordance with these rules that business has to be transacted. But whatever executive
action is to be taken by way of an order or instrument, it shall be expressed
to be taken in the name of the Governor in whom the executive power of the
State is vested and it shall further be authenticated in the manner specified
in the rules framed by the Governor.
Clauses (1) and (2) of article 166 in my
opinion are to be read together. Clause (1) cannot be taken separately as an
independent mandatory provision detached from the provision of clause (2).
While clause (1) relates to the mode of expression of an executive order or
instrument, clause (2) lays down the way in which such order is to be authenticated;
and when both these forms are complied with, an order or instrument would be
immune from challenge in a court of law on the ground that it has not been made
or executed by the Governor of the State. This is the purpose which underlies
these provisions and I agree with the learned Attorney-General that
non-compliance with the provisions of either of the clauses would lead to this
result that the order in question would lose the protection which it would
otherwise enjoy, had the proper mode for expression and authentication been
adopted. It could be challenged in any court of law even on the ground that it
was not made by the Governor of the State and in case of such challenge the
onus would be upon the State authorities to show affirmatively that the order
was in fact made by the Governor in accordance with the rules framed under
article 166 of the Constitution. This view receives support from a
pronouncement of the Federal Court 633 in J.K. Gas Plant Manufacturing Company
Limited and Others v. King-Emperor(1), where a somewhat analogous provision
contained in section 49(1) of Schedule IX of the Government of India Act came
up for consideration and the provision was held to be directory and not
imperative.
Even ii clause (1) of article 166 is taken to
be an independent provision unconnected with clause (2) and having no relation
to the purpose which is indicated therein, I would still be of opinion that it
is directory and not imperative in its character. It prescribes a formality for
the doing of a public act. As has been said by Maxwell(2), "where the
prescriptions of a statute relate to the performance of a public duty and where
the invalidation of acts done in neglect of them would work serious general
inconvenience or injustice to persons who have no control over those entrusted
with the duty without promoting the essential aims of the legislature, such
prescriptions seem to be generally understood as mere instructions for the
guidance and government of those on whom the duty is imposed, or in other words
as directory only." In the present case the order under section 11 (1) of
the Preventive Detention Act purports to be an order of the Government of
Bombay and is signed by the officer who was competent to sign according to the
rules framed by the Governor under article 166 of the Constitution, and in
these circumstances I am unable to hold that the order is a nullity even though
it has not been expressed to be made in the name of the Governor. The result is
that both the grounds fail and the petition is dismissed.
CHANDRASEKHARA AIYAR J.--I concur in the order
just now pronounced by my learned brother Mukherjea J. and I have nothing
useful to add.
MAHAJAN J.--The legality of the detention of
the petitioners in all the above-mentioned petitions is challenged on two
grounds:(1) That the order of (1)[1947] F.C. R. 142.
(2)Maxwell on Interpretation of Statutes, pp.
379-80.
634 continuance of the detention made under
section 11 of the Preventive Detention Act, 1950, as amended, does not specify
the period of detention. (2) That it is not expressed "in the name of the
Governor" as required by article 166 (1) of the Constitution. The
petitioners were informed through the District Magistrate that government had
confirmed the detention orders but they were not told for what period their
detentions were to continue. No order expressed in the manner contemplated by
article 166 (1)was served on them.
It was contended on behalf of the petitioners
that the requirements of the Preventive Detention Act should be strictly
complied with, that it was one of the requirements of section 11 of the Act
that the government should at the time of confirming the detention order
specify the period of the continuance of such detention and that non-compliance
in this particular vitiated the continuance order. It was further urged that
unless the order was expressed in the manner required under article 166 (1) of
the Constitution and served on the person concerned it had no force.
The learned Attorney-General contested both
these contentions. He argued that it was not incumbent on government to make
any formal order under section 11 and all that the section contemplates is an
executive action indicating an intention of the government to confirm the
detention order and continue the detention after receipt of the report of the
Advisory Board, that there was nothing in the language of the section which
obliged the government to specify the period of such detention and that any
omission to mention the period would not make the continuation of the detention
illegal. It was also argued that the action of the government under section 11
need not necessarily be expressed as required in article 166 (1) that these
provisions were merely directory and not mandatory and had been substantially
complied with.
For a proper appraisal of these contentions
it is necessary to set out the relevant provisions of the 635 Constitution and
of the Preventive Detention Act. Articles 22 (4) and (5) of the Constitution
are in these terms :-"(4) 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 ............
(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 representation against the order." Sections 3, 9,
10, 11 and 13 of the Preventive Detention Act provide as follows:-" 3. The
Central Government or the State Government may--(a) if satisfied with respect
to any person that with a view to preventing him from acting in any manner prejudicial
to ............ it is necessary so to do, make an order directing that such
person be detained.
"9. 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 (3) of section 3." "10. (1) the
Advisory Board shall, after considering the materials placed before it and,
after calling for such further information, as it may deem necessary, from the appropriate
Government or from the person concerned, and if in any particular case it
considers it essential, after hearing him in person, submit its 636 report to
the appropriate Government within ten weeks from the date specified in
sub-section (2) of section 9.
(2) The report of the Advisory Board shall
specify in a separate part thereof the opinion of the Advisory Board as to
whether or not there is sufficient cause for the detention of the person
concerned." "11. (1) In any case where the Advisory Board has reported
that there is in its opinion sufficient cause for the detention of a person,
the appropriate Government may confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit.
(2) In any case where ,the Advisory Board has
reported that there is in its opinion no sufficient cause for the detention of
the person concerned, the appropriate Government shall revoke the detention
order and cause the person to be released forthwith." "13. (1)Without
prejudice to the provisions of section 21 of the General Clauses Act, 1897 (X
of 1897), a detention order may at any time be revoked or
modified,.......,........
The revocation of a detention order shall not
bar the making of a fresh detention order under section 3 against the same
person." The answer to the first question depends on the construction to
be placed upon the words "such period as it thinks fit" occurring in
section 11 of the Act. The words have to be given their plain meaning
irrespective of the circumstance that they occur in a temporary statute and
have to be construed in the same manner if they occurred in a permanent
statute.
It has been held by this Court in Makkan
Singh Tarsikha v. State of Punjab, Petition No. 308 of 1951, that fixing of the
period of detention in the initial order of detention under section 3 is
contrary to the scheme of the Act inasmuch as such a construction tends to
prejudice the case of the detenu when placed before the Advisory Board. It was
emphasized that before a person is deprived of his personal liberty, the
procedure established by law must be strictlyfollowed 637 and must not be
departed from to the disadvantage of the person affected. The language employed
in section 11 of the Act is different from the language of section 3 and to my
mind, this difference indicates a contrary intention. The words "such
period as it thinks fit" have the meaning that government has to specify
and fix the period of such detention. If these words were construed in the
manner suggested by the learned Attorney-General, it will lead to the result
that the Preventive Detention Act would authorise detention of a person without
specification of the period of such detention at any moment of time, subject of
course to the over-all limit fixed for the life of the Act itself, and that the
government would not be obliged to apply its mind to the question of duration
at all. Such a conclusion, to my mind, has to be avoided unless the language
employed conclusively points to it.
Under the Constitution, the detention of a
person under any law providing for preventive detention cannot be for a period
of more than three months unless the Advisory Board is of the opinion that
there is sufficient cause for the detention of the person concerned. The
Constitution itself has specified the maximum limit of the initial detention
and detention for a period longer than three months can only be made on the
basis of the report of the Advisory Board.
The words "longer period than three
months" to my mind do not indicate that the period can be of indefinite
duration, as it could be under the unique Regulation III of 1818. On the other
hand, they indicate a specified period, though longer than three months. The
Constitution visualizes, in my opinion, a period of detention initially for
three months, which may subsequently be extended for a further period of time;
but it rules out the idea of detention without a fixed duration, i.e. with a beginning
but without an end. Any notion of an indefinite period of detention is wholly
foreign to a democratic constitution like ours. As pointed out by me in
Gopalan's ease(1), the law of (1) [1950] S.C.R, 88. 88 638 preventive detention
during peace times is an evil of necessity as it deprives a person of his
personal liberty without a trial and even without a personal hearing and that
being so, the safeguards provided against unregulated executive action have to
be construed as widely as possible for the benefit of the person detained. The
words "such period" imply that there has to be a beginning and an end
of that period; in other words, it has to be for a certain duration the extent
depending on the pleasure of the government.Though the government is entitled
to fix the period of detention at its choice, it is bound to make a decision
about it. If this was not the true import and meaning of the language employed
in the section and the intention was that the government need not specify the
duration of the detention, the section, in my view. would have been drafted
differently. There was no necessity to use the words:for such period as it
thinks fit" therein at all. The intention would have been well expressed
if the section was worded as follows:"The appropriate Government may
confirm the detention order".
It was on these lines that rule 26 of the
Defence of India Rules was drafted and the same was the scheme of Regulation
III of 1818. The warrant to the jailer in the regulation directed him to
receive the person into custody and to deal with him in conformity with the
orders of the Governor-General. The same phraseology could have been employed
in section 11.
It has been held by this Court in Chakkar
Singh v. The State of Punjab (Petition No. 584 of 1951), that the power of the
detaining authority under section 11 is not exhausted once it specifies the
period of detention but that it can, before the expiration of the period
initially fixed, direct the detention of a person to continue for a further
period I took this view for the simple reason that it was in accord with the
provisions of the General Clauses Act which provide that the authority which
has the power to make a certain order or to give a certain direction has also
the power before it becomes functus officio to revise and reconsider that 639
order or to amend or to alter it. That decision does not by implication suggest
that it was not obligatory on government to specify the period of detention
under section 11. On the other hand, it presupposes that such a period should
be fixed but the Government can change its mind if it considers necessary.
The conclusion that the section authorizes
detention for an indefinite period was negatived by the late Chief Justice and
by me in Gopalan's case(1). The learned Chief Justice in that case in dealing
with section 11 made the following observations :-"It was argued that
section 11 of the impugned Act was invalid as it permitted the continuance of
the detention for such period as the Central Government or the State Government
thought fit. This may mean an indefinite period. In my opinion this argument
has no substance because the Act has to be read as a whole. The whole life of
the Act is for a year and therefore the argument that the detention may be for
an indefinite period is unsound." In the same case I said as follows :-"Section
11 of the Act was also impugned on the ground that it offended against the
Constitution inasmuch as it provided for preventive detention for an indefinite
period.
This section in my opinion has to be read in
the background of the provision in subclause (3) of section 1 of the Act which
says that the Act will cease to have effect on 1st April, 1951." In S.
Krishnan v. The State of Madras(2), the question of the validity of section 11
was again examined. The court took the view that the section was good. Bose J.
dissenting held that the section was bad as it provided for an indefinite
period of detention. Patanjali Sastri J., as he then was, and with whom the
learned Chief Justice agreed as to the validity of the section observed as
follows:-"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 (1) [1950] S.C.R. 88.: (2) [1951] S.C.R. 621.
83 640 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 1st April. 1952, and no detention under the Act can continue there
after the discretionary power could be exercised only subject to that over-all
limit." In the same case while upholding the validity of section 11, I
made the following observations :-"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 point for decision in that case was whether it was
necessary while enacting the Preventive Detention Act to fix a maximum period
for the detention of a person as contemplated by article 72 (7) of the
Constitution, and whether for want of such fixation the statute was void. That
contention was negatived. The point that arises for determination in the
present case,however, is whether the Government when making an order under
section 11 of the Act has got to specify a period for the continuance of the
detention. The question as to the meaning of the words "such period as it
thinks fit was neither argued nor decided in either of the cases mentioned
above. The result of the above decisions to my mind is this:that section 11
does not provide for an indefinite period of detention and is not bad on that
ground, though Bose J. took a contrary 641 view. The section in view of these
decisions should read thus :"In any case where the Advisory Board has
reported that there is in its opinion sufficient cause for the detention of a
person. the appropriate Government may confirm the detention order and continue
the detention of the person concerned for such period as it thinks fit, (but
not beyond the period of the life of the Act itself)." Within the period
of the life of the Act the Government can fix any period for the duration of
the detention. The words "such period as it thinks fit", in my
opinion, oblige the Government to fix a period of the detention of the person
concerned within the over-all limit of the period of the life of the Act. The
government must make up its mind and decide in each individual case after the
receipt of the report of the Advisory Board whether a particular detenu has to
be kept in detention for the whole of the over-all period, or for any period
shorter than that. It cannot be presumed that every case requires detention for
the maximum period. That decision is however subject to review and alteration
before the time originally determined runs out.
The contention that the Government need make
no order at all under section 11 and that it can indicate its intention by some
other method seems to me to be unsound. This result was sought to be spelt out
of the phraseology of sections 3 and 11 of the Act. Section 3 provides for the
making of an order of detention, while section 11 does not use that
phraseology. In my opinion, however, this difference in the phraseology of the
two sections does not in any way support the contention raised. The making of
an order is implicit in the language of the section itself. Confirmation of an
order already passed can only be by making an order. The section in another
part provides for the revocation of an order.
Revocation of an order again can only be made
by passing an order of revocation and cannot be done by any other process.
Section 13 provides not only for 642
revocation of an order but for modification of the order of detention. It is
obvious that the modification of an order is only possible by passing a fresh
order and not in any other manner. No particular significance can attach to the
omission of the words ' 'make an order" in section
11. The word ' 'order" has numerous
meanings but the meaning relevant in the present context is
"decision". It also means "an authoritative direction or
mandate". It cannot be contended that Government can confirm or continue
the detention without taking a decision or issuing a direction. Such a decision
or direction is tantamount to an order. I am therefore clearly of the view that
it is the intention of the law that when the report of the Advisory Board
reaches the Government, it has to come to a decision and pass an order in
accordance with that decision against the detenu to the effect that in view of
the report of the Advisory Board the detention order is continued for a certain
period.
Reliance was placed by the learned
Attorney-General in support of his contention on two decisions of the High
Courts in India. In Prahlad Krishna v. The State of Bombay(1), it was held that
it was not necessary to mention the period during which the detenu will be
further detained after the State Government had confirmed the detention order.
This conclusion was reached on the following reasoning :"The words of the
section are exactly similar in effect to the words of a contract between two
parties in which one said to the other that the latter should keep a cycle lent
by the former for such period as he thought fit.
There would be no necessity in such a case
for the person to whom the cycle was lent to say how long he would keep the
cycle ....... .. If the legislature had intended that the appropriate Government
should make an order after receiving a report of the Advisory Committee as to
how long the detenu should be detained, it would have said not that the
detenu's detention should continue as long as the appropriate Government
thought fit, but 'pass an order for the (1) A.I.R. 1952 Bom. 1.
643 detention of the person concerned for
such further period as it deemed fit." The analog of the cycle contract,
in my opinion, is neither happy nor apposite, in the construction of section 11
of the Preventive Detention Act. Further I am not able to see how the draft
suggested by the High Court would have more appropriately brought out the
intention of the legislature than the words of the section as it now stands.
The addition of the word "further" does not necessarily indicate that
the Government is bound to specify a period if the original words "such
period" do not so indicate.
In Ram Adhar Misra v. The State(1), it was
held that an order of detention which does not specify the period of detention
cannot be regarded as illegal. Reliance was placed on the observations of the
late Chief Justice and myself in Gopalan's case(2), and cited earlier in this
judgment.
These observations do not support the
conclusion reached by the High Court, as already observed. The decision is not
supported on any other independent reasoning.
The nearest analogy to the language employed
in section 11 is found in the provisions of Part IV of the Code of Criminal
Procedure relating to prevention of offences. In sections 106 to 110 of this
Part the language employed is "a person can be called upon to execute a
bond for his good behaviour etc. for such period not exceeding one year or
three years as the Magistrate thinks fit to fix." It is not possible to
argue that the magistrate can call upon a person to execute a bond without
fixing a period for which that bond is to be good, and that in the absence of
such determination it has to be presumed that the bond has to be executed for
the maximum period mentioned in the section. In my opinion, failure to fix the
period for which the bond is to be operative would make the order ineffective.
and any default on the part of the person called upon to give the bond would
not be punishable. The discretion given to Government by (1) A.I.R. 1951 All.
18.. (2) [1950] S.C.R.
644 the phrase "as it thinks fit"
is limited by the duty imposed on it by the provisions of the section.
The next question that falls to be determined
and which is of some difficulty, is whether failure to fix the period makes the
detention illegal. After considerable thought I have reached the conclusion
that the nondetermination by Government of the period of the continuance of the
detention operates prejudicially against the detenus and makes the detention
illegal. It is possible and even probable that had the Government on receipt of
the report of the Advisory Board applied its mind and come to a decision on the
point, it might well have fixed the duration of the detention at a point of
time that would have expired by now, though it is also likely that it might not
have expired by now. In such a situation when the matter is in doubt it is not
right to hold that the detention of the petitioners at the present moment is
lawful. The onus of establishing affirmatively that the detention of these
petitioners is lawful at the present moment rests on the detaining authority
and in the circumstances it has to be held that this onus remains undischarged.
The subsequent conduct of the Government in resisting these petitions is not
relevant in this enquiry in the absence of an order as prescribed by the
statute. If the Government finds that the detention of the petitioners is
necessary up to 31st March, 1952, it can give effect to that intention in these
cases by issuing a fresh order of detention.
The result therefore is that, dissenting from
the decision of the majority of the court, I hold that the petitioners are not
detained according to procedure established by law and are entitled to their
release. I therefore direct that they be released forthwith.
In this view of the case I do not feel called
upon to decide the second point raised in these eases.
Petitions dismissed.
Agent for the respondents: P.A. Mehta.
Back
