Shamarao V. Parulekar Vs. The District
Magistrate, Thana, Bombay & Ors [1952] INSC 34 (26 May 1952)
BOSE, VIVIAN SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1952 AIR 324 1952 SCR 683
CITATOR INFO :
R 1953 SC 52 (8) R 1956 SC 614 (7) RF 1986
SC2146 (9) R 1991 SC 704 (B,7)
ACT:
Preventive Detention Act (IV of
1050)--Amendment Acts of 1951 and 1952--Detention order under Act of 1950 as
amended in 1951 --Extension of duration of Act by Amending Act of 1952 until
1st October, 1952--Whether extends period of detention--Amendment Acts--Rule of
construction__"Principal Act," meaning of-Validity ors. 3 of Amending
Act of 1952--Legality of detention after 1st April, 1952--Constitution Of India
Arts. 14, 22(4) and (7).
HEADNOTE:
An order directing the detention of the
petitioner was made on the 15th of November, 1951, under the Preventive
Detention Act of 1950 as amended by the Amending Act of 1951, which prolonged
the duration of the Act of 1950 up to the 1st April, 1952. The Preventive Detention (Amendment) Act of 1952 extended the duration of the Act of 1950 for a
further period of six months, that is to say, until the 1st October, 1952. Section 3 of the Act of 1952 provided further that detention orders confirmed under
the principal Act and in force immediately before the commencement of the Act
of 1952, shall, where the period of detention is not specified in the order,
remain in force "for so long as the principal Act (which was defined as
the Act of 1950) was in force." It was contended on behalf of the
petitioner that his detention after 1st April, 1952, was illegal.
Held, (i)When a subsequent Act amends an
earlier one in such a way as to incorporate itself or a part of itself into the
earlier, then the earlier Act must thereafter be read and construed (except
where that would lead to a repugnancy, inconsistency or absurdity) as if the
altered words had been written into the earlier Act with pen and ink and the
old words scored out so that there is no need to refer to the amending Act at
all. After the passing of the Act of 1952 the expressions "the Act of
1950" and "the principal Act" meant the Act of 1950 as amended
by the Act of 1952, and the effect of s. 3 of the Act of 1952 was that the
detention of the petitioner would remain in force until the 1st October, 1952,
without prejudice to the power of the Government to modify or revoke it;
(ii) section 3 did not contravene Art. 14of
the Constitution as there was a rational classification of the cases of
detention orders in the section, and the period of detention was left in every
case to the discretion of the State;
(iii) the words "any person" in
sub-cl. (b) of c1.7 of Art. 22 of the Constitution do not contemplate that individual
attention should be paid to each case; on the contrary, the words used in the
said sub-clause empower the Parliament to prescribe the maximum for a class
taken as a whole as it has done in s. 3, and s. 3 does not therefore offend cl.
(4) or cl. (7) of Art. 22;
(iv) the power of the Parliament to fix a
maximum period does not exhaust itself once it has exercised that power but can
be exercised again in respect of the same detention;
(v) section 3 is not repugnant tO the
Constitution on the ground that it does not fix a time limit, for it specifies
the period as until the expiry of the Act; nor on the ground that it introduces
the idea of potentially indefinite detention by periodical amendments; for the
Parliament has the power to do that:
685
ORIGINAL JURISDICTION: Petitions (Nos. 86,
147, and 155 of 1952) under article 32 of the Constitution for writs in the
nature of habeas corpus.
Petitioners in person in ,petitions Nos. 86,
147 and 157 of 1952.
Rajani Patel for the petitioner in petition
No. 155.
M.C. Setalvad, Attorney-General for India,
(G. N. Joshi, with him) for the respondents.
R. Ganapathi Iyer for the intervener (State
of Hyderabad).
1952. May 26. The Judgment of the Court was
delivered by BOSE J.--This petition and three others, namely petitions Nos.
147, 155 and 157 of 1952, raise issues regarding the vires and applicability to
these cases of section 3 of the Preventive Detention (Amendment) Act, 1952.
This judgment is confined to those points and will govern these cases only in
so far as they raise those points. The remaining points which do not touch
these issues will be dealt with by another Bench. The only exception is a point
raised in petition No. 155 of 1952 with which the other petitions are not
concerned. We will deal with that separately.
The present petition (No. 86 of 1952) was
argued very ably and with commendable conciseness by the petitioner in person.
The fact that he has not been able to persuade us to his view is not due to any
defect in his presentation of the case.
The petitioner was arrested on the 15th of
November, 1951, and an order of detention under the Preventive Detention Act of
1950 was served on him the same day, and he was given the grounds of detention
on the following day, the 16th. His case was placed before an Advisory Board
and on the 8th of February, 1952, the Bombay Government "confirmed and
continued" the detention under section 11 (1) of the Preventive Detention
Act of 1950.
This Act, as it originally stood, was due to
expire on the 1st of April, 1951, but in that year an amending 686 Act was
passed which, among other things, prolonged its life to the 1st of April, 1952.
The order of detention in this case was passed under the Act of 1950 as amended
by the ,Act of 1951. According to past decisions of this Court, the detention
would have expired on the 1st of April, 1952, when the Act of 1950 as amended
in 1951 would itself have expired. But a fresh Act was passed in 1952 (Act
XXXIV of 1952), the Preventive Detention (Amendment) Act, 1952. The effect of
this Act was to prolong the life of the Act of 1950 for a further six months,
namely till the 1st of October, 1952. The question is whether that Act also
prolonged the detention and whether it had the vires to do so.
It was contended that the mere prolongation
of the life of an Act does not, by reason of that alone, prolong the life of a
detention which was due to expire when the Act under which it was made expired.
Therefore, as the Act under which the present detention was made was due to
expire on the 1st of ApriL, 1952, the mere prolongation of its life by the
amending Act did not affect a prolongation of the detention. Accordingly, the
petitioner should have been released on the 1st of April, 1952, and as there is
no fresh order of detention he is entitled to immediate release.
We need not express any opinion on that point
because there is present in the amending Act something more than a mere
prolongation of the life of the old one. There is section a which is in these
terms:
"Validity and duration of detention in
certain casesEvery detention order confirmed under section 11 of the principal
Act and in force immediately before the commencement of this Act shall have
effect as if it had been confirmed under the provisions of the principal Act as
amended by this Act; and accordingly, where the period of detention is either
not specified in such detention order or specified (by whatever form of words)
to be for the duration or until the expiry of the principal Act or until the
31st day of March, 1952, such detention order shall continue to 687 remain in
force for so long as the principal Act is in force, but without prejudice to
the power of the appropriate Government to revoke or modify it at any
time." It will be noticed that the concluding part of this section states
that the detention order shall remain in force "for so long as the
principal Act is in force." Section 2 of the amending Act defines the
"principal Act" to mean the Act of 1950. Therefore, it was argued, as
the Act of 1950 was due to expire on the 1st of April, 1952, the present
detention also came to an end on that date and so, in the absence of a fresh
order of detention, the petitioner's detention after that date was illegal.
This argument, though ingenious, is fallacious.
The construction of an Act which has been
amended is now governed by technical rules and we mast first be clear regarding
the proper canons of construction. The rule is that when a subsequent Act
amends an earlier one in such a way as to incorporate itself, or a part of
itself, into the earlier, then the earlier Act must thereafter be read and
construed (except where that would lead to a repugnancy, inconsistency or
absurdity) as if the altered words had been written into the earlier Act with
pen and ink and the old words scored out so that thereafter there is no need to
refer to the amending Act at all. This is the rule in England:see Craies on
Statute Law, 5th edition, page 207; it is the law in Amenca: see Crawford on
Statutory Construction, page 110; and it is the law which the Privy Council
applied to India in Keshoram Poddar v. Nundo Lal Mallick(1).
Bearing this in mind it will be seen that the
Act of 1950 remains the Act of 1950 all the way through even with its
subsequent amendments. Therefore, the moment the Act of 1952 was passed and
section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended
by section 2, that is to say, the Act of 1950 now due to expire on the 1st of
October, 1952.
(1)(1927) 54 I.A. 152 at 155.
688 Turning now to section 3, whose vires is
questioned, and examining it clause by clause we first get these words:
"Every detention order confirmed under
section 11 of the principal Act and in force immediately before the
commencement of this Act." According to the rule of construction just
examined, the words "principal Act" mean the Act of 1950 as amended
by the Acts of 1951 and of 1952, 'that is to say, the Act of 1950 due to expire
on the 1st of October, 1952. Incidentally, in the particular context it could
not mean the Act of 1950 as it stood in 1950 because no order confirmed under
it as it then stood could have been alive "at the commencement of this
Act", namely on the 15th of March, 1952. The section continues-"shall
have effect as if it had been confirmed under the provisions of the principal
Act as amended' by this Act." The underlined words "as amended by
this Act" were relied on to show that wherever the words "the
principal Act" were referred to they meant the unamended original Act of
1950, otherwise these words would have been unnecessary.
In our opinion, they were unnecessary in the
sense that their absence would not have made any difference to the
interpretation though it would have made the section harder to follow and understand.
We say that for this reason.
Without the underlined words the section
paraphrased would read-"Every detention order confirmed under the original
Act shall have effect as if confirmed under its provisions." If this were
to be read literally it would lead to an absurdity, for if the order is
actually confirmed under the original unamended Act it would be pointless to
introduce a fiction and say that the order shall be deemed to be confirmed
under that Act as unamended. But even apart from a strictly technical
construction, the language of the section is accurate because, as we 689 have
said, the rule is that an amended Act must be read as if the words of amendment
had been written into the Act except where that would lead to an inconsistency,
and this would be one of those cases unless the words are construed in a
sensible and commonsense way. The draughtsman therefore had either to leave the
words as they were, with an apparent inconsistency, or make his meaning clear
by adding the words he did. But we do not think the addition made any
difference to the result.
We now turn to the second half of section 3,
that is to say, to the words following the semi-co]on. It is important to note
here that this part is consequential on the first and merely explains the
effect of the first half. It is also relevant to note that it deals with four
different kinds of orders, different, that is to say, in the form of the words
used though in the end they all come to the same thing. It deals with the
following kinds of order:(1) an order in which the period of detention is not
specified at all; in that event the detention would end at midnight on the
night of the gist of March, 1952. It is clear that in this context the words
"the principal Act" cannot mean the Act expiring on the 1st of
October, 1952, because it envisages an order made before the Act of 1952 was in
being and so on the date of its making the order could only refer to the Act
then in being;
(2) an order in which the period is stated to
be "for the duration of the principal Act", that is to say, till the
31st of March, 1952 ,(3) an order in which the period is specified to be until
the expiry of the principal Act, which again brings us back to the 31st of
March, 1952, as the last day of detention;
(4) an order in which the period is specified
to be till the 31st of March, 1952. In all these four cases the section says
that the detention order shall "continue to remain in force, for so long
as the principal Act is in force", that , is to say, till the 1st October,
1952.
690 That follows from the first part of the
section because that is the meaning which the law directs shall be placed on
these words unless the context otherwise directs and the context does not
direct otherwise here. This part of the section is only explanatory.
But we wish to found deeper than this. It is
the duty of Courts to give effect to the meaning of an Act when the meaning can
be fairly gathered from the words used, that is to say, if one construction
will lead to an absurdity while another will give effect to what common sense
would show was obviously intended the construction which would defeat the ends
of the Act must be rejected even if the same words used in the same section,
and even the same sentence, have to be construed differently. Indeed, the law
goes so far as to require the Courts sometimes even to modify the grammatical
and ordinary sense of the words if by doing so absurdity and inconsistency can
be avoided. See the speech of Lord Wensleydale in Grey v. Pearson (1) quoted
with approval by the Privy Council in Narayana Swami v. Emperor (2); also
Salmon v. Duncombe(3). The rule is also set out in the text books:
See Maxwell on the Interpretation of
Statutes, 9th edition, page 236, and Craies on Statute Law, 5th edition, pages
89 to 93. The meaning of section 3 is quite plain and only desperate hair
splitting can reduce it to an absurdity.
Courts should not be astute to defeat the
provisions of an Act whose meaning is, on the face of it, reasonably plain.
Of course, this does not mean that an Act, or
any part of it, can be recast. It must be possible to spell the meaning
contended for out of the words actually used. We hold that there is no
difficulty of construction.
It was next argued that in any event the
extended detention became a fresh detention (because of the Act of 1952) from
the date the Act came into force, and reliance was placed upon the judgments of
two of us, Mahajan and Das JJ.
in S. Krishnan v. The State of Madras(4). It
is enough to say that was not the (1) (1857) 6 H.L.C. 6 r at 106. (3) 11 App.
Cas. 627 at 634.
(2) A.I.R. 1939 P.C. 47. (4) [1951] S.C.R.
621 at 635 and 640.
691 decision of the Court in that case, and
further, that the two Judges who held it was a fresh detention nevertheless
considered that a fresh order with its concomitant fresh grounds and a fresh
reference to the Advisory Board were not required; therefore, either way the
petitioner must fail.
Reference was made to the equality clause in
article 14 of the Constitution but that argument is easily met because the
classification which section 3 makes is reasonable. In one class it places all
those whose cases have already been considered by the Advisory Board and in the
other those whose cases have yet to go before it; also the law is fair, or at
any rate as fair as detention laws can be, despite this distinction because
power is left to the appropriate Government to revoke or modify these orders,
or any of them, at any time. Substantially therefore there is no differentiation.
Article 14 was considered at length in The
Slate of West Bengal v. Anwar Ali Sarkar (1), and according to the law laid
down there, the Court must be satisfied on two points before it can strike at a
law on the ground of unlawful discrimination. It must be satisfied (1) that the
law in fact discriminates and (2) that such discrimination is not permissible
on the principle of a rational classification made for the purposes of the
legislation.
The argument here was that section a
discriminated against those detenus whose cases had been referred to the
Advisory Board and whose detention was confirmed, on the strength of its
report, under section 11 (1) before the amending Act of 1952 was passed. The
reason given was that these detentions are automatically extended up to the 1st
of October, 1952, by section 3 without further reference to an Advisory Board,
whereas in other cases, that is to say, in the case of those who were detained
before the amending Act but whose cases had not been referred at the date it
came into force, and in the case of those detained after the (1)[1952]
S.c.R.284 692 amending Act, the Advisory Board is called into play and
individual attention is given to each case with the result that many of those
detentions might not be for as long as six months. They might, for example, be
only for one month or two. It was urged that this was discrimination of a kind
which cannot be supported by any principle of permissible classification
because classification into the above categories has no reasonable relation to
the objects of the legislation, such as security of the State, maintenance of
public order and so forth.
We are unable to accept this line of
reasoning. To say that section. 3 automatically extends the detention of
persons in the petitioner's position to the 1st of October, 1952, and stops
there, is only to make a partial statement of the effect of section 3 because
the extension is subject to the power of the appropriate Government to revoke
or modify it at any time. In other words, the automatic continuation of the
detention till the 1st of October is not absolute and irrevocable but is made
dependent on the power of the appropriate Government to revoke or modify it at
its discretion under section 13 of the Act. The State may or may not continue
the detention for the whole of the extended period. In both classes of cases
the duration the detention within the overall limit of the life of the Act is
left to the discretion of the State. The only difference is that in the one
class of cases the discretion is exercised after the period has been extended
by the amending Act, in the other the appropriate Government fixes the period
itself in its discretion and can again at its discretion revoke or modify it.
In both cases, the substance of the law is that the period of detention is left
to the discretion of the State, and so there is no substantial discrimination.
It was argued that however fair this may look
on paper, in practice there will be grave discrimination because, as a matter
of fact, the State will not apply its mind in the majority of cases like the
petitioner's. That is an argument we cannot accept and no material Was placed
before us t0 justify such a conclusion, 693 We turn now to the next point. It
was contended that section 3 offends the Constitution because article 22 (4)
and (7) do not envisage the direct intervention of Parliament in a whole batch
of cases. The protection guaranteed is that there shall be individual attention
and consideration to each separate case by some duly specified and constituted
authority. In our opinion, this is not accurate.
Article 22 (4) guarantees that there shall be
no preventive detention for more than three months unless the law authorising
it makes provision for an Advisory Board and the Board after considering each
individual case separately reports that there is in its opinion sufficient
cause for such detention. To that extent there must be individual consideration
of each case, but once the report is made and is unfavourable to the detenu,
then the detention can be for a longer period provided it does not exceed
"the maximum period prescribed by any law made by Parliament under subclause
(b) of clause (7)." Sub-clause (b) of clause (7) empowers Parliament to
prescribe "the maximum period for which any person may in any class or
........... of cases be detained under any law providing for preventive detention."
Parliament is accordingly empowered to specify a class. It has done so. The
class is all persons whose cases have already been considered by an Advisory
Board. It is empowered to prescribe a maximum period. That also it has done.
The extended detention (that is to say, for more than three months) can then be
"under any law providing for preventive detention." A law made by
Parliament falls within these words. Parliament is equally authorised to say
who shall determine the period of detention, and as there is nothing in the
Constitution to prevent it can itself exercise the authority it is empowered to
delegate to others.
Stress was laid on the words "any
person" in subclause (b) of clause (7) and it was contended that this
contemplates individual attention in each case. But 694 if that is so, then it
means that Parliament must itself direct the maximum period for each separate
person falling within the class individually. The words are, we think,
reasonably plain and we hold that Parliament can prescribe the maximum for a
class taken as a whole as it has done in section 3.
It was next argued that once the power given
under clause (7) to fix a maximum period has been exercised the power exhausts
itself and cannot be exercised again in respect of the same detention. In our
opinion, no such limitation is imposed upon Parliament by the Constitution.
Then it was said that section 3 stands on a
footing different from section 12 of the amending Act of 1951 as it introduces
the idea of potentially indefinite detention and accordingly is repugnant to
the Constitution, and in any event is a fraud upon it. In so far as this means
that section a fixes no time limit, the contention is unsound because the
section specifies the exact period of the detention, namely till the expiry of
the Act of 1950, that is to say, till the 1st of October, 1952. In so far as it
means that Parliament is enabled to continue detentions indefinitely by the
expedient of periodic amendments in the Act of 1950, the answer is that
Parliament has the power. This was precisely the power exercised in the
amending Act of 1951 and upheld by this Court in S. Krishnan v. The State of
Madras(1). The present Act is no different from that in this respect.
So far, we have dealt with the facts in
petition No. 86 of 1952. The facts in the other three petitions naturally
differ in their details but they all conform to the same general pattern so far
as the points discussed above are concerned, so there is no need to discuss
them individually.
We hold that section 3 of the amending Act of
1952 is intra vires and that the detentions are not bad on any of the grounds
discussed above. The rest of the points raised in each individual case are left
open except for one point which (1) [1951] S.C.R. 621.
695 arises in petition No. 155 of 1952. That
point is as follows.
The first ground of detention given to the
petitioner in this case reads:
"Being the President of Jamat of Agris
you have used your position as such to increase your influence over the
residents of Uran Peta, have created a band of obedient and trusted associates,
have inflicted heavy fines on villagers in Uran Peta who have disregarded your
wishes and have imposed on them boycott or excommunication in cases of their
refusal to pay the fines. " It was argued that at the very outset' these
allegations import nothing more than an exercise of functions such as the
infliction of fines and excommunication which the petitioner as head of the
caste had authority to do. They do not touch any of the matters covered by
section 3 (1) (a) of the Preventive Detention Act, 1950, under which the
petitioner is detained. For example, they do not touch the security of the
State or the maintenance of public order or any of the other matters specified
in section 3. They are therefore irrelevant to the detention, and as it is
impossible to say how far these irrelevant matters influenced the detention,
the petitioner is entitled to release. Reliance was placed upon certain
observations of the Federal Court in Rex v.
Basudev(1). We think it unnecessary to examine
this point because we do not think the ground is irrelevant nor do we agree
that it means what the petitioner says.
In our opinion, the grounds of detention must
be regarded as a whole and when that is done the relevance of the first ground
becomes plain. The gravamen of the charge against the petitioner is that he
aimed at setting up a parallel government in the Uran Peta area and that in
order to achieve that end he did various acts such as intimidating the workers
in the salt pans with threats of murder, and his own workers with threats of
death, unless they carried out his (1) [1949] F.C.R. 657 at 651.
696 orders; and among the lesser instances
given to illustrate the exercise of parallel governmental authority are the
ones set out in the first ground, namely the infliction of fines with the
sanction of excommunication and boycott to ensure their payment and due
obedience to his orders. This point has no force and is decided against the
petitioner. It will not be open to him to re-agitate this afresh when his case
is reheard on the remaining issues.
All the four cases will now be set down for
hearing on the remaining points which arise in them. As they do not involve
constitutional issues they need not go before a Constitution Bench.
Agent for the petitioner in Petition No. 155:
M.S.K. Sastri for P.G. Gokhale.
Agent for the respondents and Intervener: P.
A. Mehta.
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