Lawrence Joachim Joseph D'souza Vs.
The State of Bombay [1956] INSC 31 (24 April 1956)
JAGANNADHADAS, B.
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1956 AIR 531 1956 SCR 382
ACT:
Preventive Detention-Espionage
activity-Grounds whether vague-Vagueness due to non-disclosure of facts in
public interest Whether vitiates order-Claim of privilege-When should be
communicated-Mala fides.
HEADNOTE:
Appellant was detained under s. 3(1)(a)(i) of
the Preventive Detention Act, Act IV of 1950 on the grounds that with the
financial help given by the Portuguese authorities he was carrying on espionage
on their behalf with the help of underground workers and that he was also
collecting intelligence about the security arrangements on the border area and
was making such intelligence available to the Portuguese authorities. Appellant
made no application to the Government for further particulars.
Held, that in these circumstances and having
regard to the fact that what is alleged is espionage activity, the grounds
could not be considered to be vague.
In answer to the objection in the writ
application before the High Court that the grounds were not specific and that
no particular of the alleged activities of the appellant were given the Under
Secretary to the Government in his affidavit claimed privilege under Art. 22(6)
of the Constitution.
Held, that the right of the detenue to be
furnished particulars is subject to the limitation under Art. 22(6).
Hence even if the grounds are vague due to
the reason that facts cannot be disclosed in the public interest, the order of
detention cannot be challenged on the ground of such vagueness.
The necessity of communicating the decision
to claim privilege under Art. 22(6) would arise only when the detenue asks for
particulars. In the absence of any such request by the detenue, the non communication
of the decision cannot be hold to have hampered his constitutional right to
make his representation.
Mala fides must be made out against the
detaining authority and not against the police. The contention of mala fides is
untenable in the present case having regard to the nature of the grounds and to
the nature of the activities imputed to the appellant.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 126 of 1955.
Appeal by special leave from the judgment and
order dated the 9th August 1955 of the Bombay High Court in Criminal
Application No. 726 of 1955.
M. R. Parpia, J. B. Dadachanji and S. N.
Andley, for the appellant.
M. C. Setalvad, Attorney-General for India,
B. Sen and R. H.
Dhebar, for the respondent.
1956. April 24. The Judgment of the Court was
delivered by JAGANNADHADAS J.-This is an appeal by special leave against the
judgment of the High Court of Bombay dismissing an application made to it under
article 226 of the Constitution. These proceedings relate to the validity of an
order of detention passed by the Government of Bombay on the 8th June, 1955,
against the appellant before us, who is an Advocate of the High Court of Bombay
having a standing of about thirty years. He was in the Indian Air Force as an
emergency Commissioned Officer between 1943 to 1948 and thereafter on extension
for another four years until he attained the age of 55. It appears that he was
also interested in journalism and in public affairs. On his own showing, he was
concerned over the political future of Goa and "was opposed to any
attempts at intimidation of Indian residents of Goan origin by other political
groups and has freely expressed these views in his journalistic articles".
He was arrested on the 9th June, 1955, and is
in detention since then under the impugned order, which runs as follows:
384 "No. P. D. A. 1555A.
Political and Services Department, Secretariat,
Bombay, 8th June, 1955.
O R D E R.
Whereas the Government of Bombay is satisfied
with respect to the person known as Shri Lawrence Joachim Joseph Desouza of
Bombay, that with a view to preventing him from acting in any manner
prejudicial to the relations of India with the Portuguese Government and to the
Security of India, it is necessary to make the following Order:
Now, therefore, in exercise of the powers
conferred by sub- clause (1) of clause (a) of sub-section (1) of section 3 of
the Preventive Detention Act, 1950 (Act IV of 1950) the Government of Bombay is
pleased to direct that Shri Lawrence Joachim Joseph De’souza of Bombay, be
detained.
By Order and in the name of the Governor of
Bombay.
Under Secretary to the Government of Bombay.
Political and Services Department".
In pursuance of section 7 of the Preventive
Detention Act, 1950 (Act IV of 1950) (hereinafter referred to as the Act) the
grounds of detention, also dated the 8th June, 1955, was served on him along
with the order of detention. The validity of the order is challenged on the
following contentions.
1.The order of detention was mala fide. It
was passed for the ulterior purpose of preventing his freedom of speech and
freedom of professional activity in the sphere of Goan affairs by reason of his
known views in this behalf.
2.The detaining authority in exercising its
power, failed to apply its mind to the existence or otherwise of the legitimate
objects of detention.
3. The grounds of detention are vague.
385 4.The claim of State that no particulars
of the grounds could be furnished in public interest is unsustainable and in
any case mala fide.
The last two have been urged before us not
only as independent points but as reinforcing the first two.
The challenge to the validity of the order
based on the attack of mala fides and non-application of the, mind of the
detaining authority, have been urged before us with great insistence. We have
been taken elaborately into what is claimed to be the relevant previous
background of events.
This part of the argument raises, what
ultimately are questions of fact which have been fully considered by the High
Court. It is, therefore, enough to state, in its broad outlines, the
background, which is alleged as follows:
(1)(a) There was a sudden search by the
police on the 24th August, 1954, at the appellant's place for alleged
possession of illicit liquor which, in fact, was not found.
But under the guise thereof the police seized
and carried away a mass of documents, papers and printed material of the
appellant as also a typewriter belonging to him.
(b)On the same day, a search was carried out
by the police also at his residence at Mahim but nothing was found.
(c)Immediately following the searches, the
appellant was taken into illegal police custody and interrogated, and
physically assaulted, and threatened. The above high-handed action of the
police, by way of search and seizure, was the subject matter of challenge by
the appellant by means of a writ application in the High Court in which the
police officers concerned filed affidavits virtually admitting the appellant's
allegations relating to seizure of papers, etc.
The State itself could not support the said
highhandedness.
As a result, the High Court directed on the
3rd November, 1954, the return forthwith of all the papers and articles seized.
Notwithstanding that order, the materials so illegally seized were returned
only on or about the 21st January, 1955.
(2) When one Joaquim Carlos, a Portuguese
soldier 386 attached to Goan forces, was arrested on a charge of entering
Indian territory without the requisite authority, the appellant rendered
professional assistance to him and obtained an order of release on bail from
the Chief Presidency Magistrate, Bombay, which was foiled by the police by
removing him away to Sawantwadi before the requisite sureties could be obtained
at Bombay. The trial was hurried through and the said Carlos was convicted. But
on appeal, filed by the appellant, before the Sessions Judge, the conviction
was set aside and retrial ordered.
These events happened between February to
April, 1955.
(3)Between April, 1955 to June, 1955, there
occurred certain incidents which were inspired and instigated by the members of
the Go an Action Committee who were agitating against Portuguese hold over Goa.
There was a raid on certain pro- Portuguese presses by some private persons, in
the course of which heavy damage was caused. There was also an assault on
himself (appellant) by a gang of persons of whom some were employees of the Go an
Action Committee. In respect of these two incidents private complaints had been
filed by or on behalf of the affected persons. The attitude and behaviour of
the police in respect of these complaints were clearly indicative of their
being in league with the Go an Action Committee.
The appellant's counsel strongly urged that
the bona fides of the detaining authority is to be judged with reference to the
above background of events and that viewed in that light the vagueness of the
grounds and the belated claim of privilege under article 22(6) of the
Constitution strengthen his contention. He also relied on what are urged as
being certain discrepancies in the affidavits of the Under- Secretary and the
Chief Secretary filed in the High Court in these proceedings. It is strongly
urged that the order of detention was made without any real application of mind
by the detaining authority, that the authority acted merely at the instance of
the police who were in league with the Goan Action Committee, and that the
police procured the detention 387 order for the purpose of suppressing the
freedom of the appellant, to ventilate his point of view on the Goan politics
and to take up professionally the cause of persons in the position of Carlos.
We have been taken through all the material relating to the above allegations
and have given our consideration to the same. It is enough to say that we are
unable to see any reason for disagreeing with the conclusion of the High Court
to the effect that the material is not enough to make out that the detaining
authority was acting otherwise than bona fide. We also agree with the view of
the High Court that, what has got to be made out is not the want of bona fides
on the part of the police, but want of bona fides, as well as the non-
application of mind, on the part of the detaining authority, viz. the
Government, which for this purpose must be taken to be different from the
police. It is also clear that the allegation of non-application of mind by the
detaining authority is without any basis, in view of the affidavit of the Chief
Secretary.
The further points that remain for
consideration are those which relate to the complaint of vagueness of the
grounds furnished and the alleged unsustainable claim for non- disclosure under
article 22(6) of the Constitution on behalf of the detaining authority, to get
over the alleged vagueness. To appreciate the points thus raised, it is
necessary to have an idea of the grounds of detention as furnished. They are to
be found from the relevant communication to the detenue which is as follows:
"In pursuance of section 7 of the
Preventive Detention Act, 1950 (Act IV of 1950) you are hereby informed that
the grounds on which a detention order has been made against you, by the
Government of Bombay under sub-clause (1) of clause (a) of subsection (1) of
section 3 of the said Act are that: With the financial help given by the
Portuguese authorities you are carrying on espionage on behalf of the
Portuguese Government with the help of underground workers.
You are also collecting intelligence about
the security arrangements on the border area and you make such intelligence
available to the Portuguese authorities. These activities which are being
carried on by you with the object of causing further deterioration in the
relations between the Portuguese Government and the Indian Government over the
question of Goan National Movement, are prejudicial to the security of India
and to the relations of India with Portugal.
2.If you wish to make a representation
against the order under which you are detained, you should address it to the
Government of Bombay and forward it through the Superintendent, Arthur Road
Prison, Bombay.
3.You are also informed that you have a right
to claim a personal hearing before the Advisory Board and that you should
communicate to Government of Bombay as soon as possible your intention of
exercising or not exercising that right".
The objection by the appellant relating to
this is contained in paragraph 15(g) of his application before the High Court.
It is as follows:
"The grounds are not specific and no
particulars of the activities alleged to have been carried on by the petitioner
are given, viz. the particulars such as the length of period for which the
petitioner is alleged to have carried on the so-called espionage activities or
the details of financial aid alleged to have been received by the petitioner
from the Portuguese authorities or the names of any of the so-called
underground workers alleged to be aiding the petitioner or any details of
intelligence alleged to have been collected by the petitioner or made available
by him to the Portuguese Government".
The answer thereto of the Under-Secretary to
the Government of Bombay is in paragraph 12 of his affidavit dated the 25th
July, 1955, and is as follows:
"With reference to paragraph 15, clause
(g), I submit that it is not necessary to mention particulars of the espionage
activities carried on by the petitioner or the details of the financial aid
received by him or the names of the persons aiding the said petitioner. It is
not in public interest to disclose these details; nor is it necessary to
mention these matters to afford 389 the petitioner reasonable opportunity to
make a representation" Now the question as to whether the grounds
furnished are vague or not, is ultimately a question that has to be determined
on a consideration of the circumstances of each case, as was pointed out by
this court in the State of Bombay v. Atma Ram Sridhar Vaidya(1) in the
following passage:
"The contention that the grounds are
vague requires some clarification...................... If the ground which is
supplied is incapable of being understood or defined with sufficient certainty
it can be called vague. It is not possible to state affirmatively more on the
question of what is vague. It must vary according to the circumstances of each
case...................... If on reading the ground furnished it is capable of
being intelligently understood and is sufficiently definite to furnish materials
to enable the detained person to make a representation against the order of
detention it cannot be called vague".
In the present case, the detenue has been
intimated why, in the opinion of the Government the activities of the appellant
are considered prejudicial to the security of India and to the relations of
India with Portugal. They are the following:
1.With the financial help given by the
Portuguese authorities, he is carrying on espionage on behalf of the Portuguese
Government with the help of underground workers.
2.He is collecting intelligence about the
security arrangements on the border area and making such intelligence available
to the Portuguese authorities.
3.He is carrying on these activities with the
object of causing further deterioration in the relations between the Portuguese
Government and the Indian Government over the question of the Goan National
Movement.
It is true that these allegations are not as
precise and specific as might have been desired. But having regard to the nature
of the alleged activities of the appellant, it is not unlikely that no more
could be gathered or furnished.
In this context it is relevant (1) [1951]
S.C.R. 167,184.
51 390 to notice that the appellant himself
does not appear to have felt that the grounds furnished were so vague as to
hamper him in his right to make a representation under article 22(5) and
section 7 of the Act. It does not appear that he applied to the Government to
be supplied with particulars of the grounds furnished to him. Such a right to
call for particulars has been recognised in the case in the State of Bombay v.
Atma Ram Sridhar Vaidya(1) as flowing from his constitutional right to be
afforded a reasonable opportunity to make a representation to the Board. In
that case it has been stated that "if the grounds are not sufficient to
enable the detenue to make a representation, the detenue............ if he
likes, may ask for particulars which would enable him to make the
representation". The fact that be bad made no such application for
particulars is, therefore, a circumstance which may well be taken into
consideration, in deciding whether the grounds can be considered to be vague.
In the circumstances and having regard to thefact that what is alleged is
espionage activity ata time when relations between the two Governments on the
affairs of Goa were somewhat delicate, we are inclined to think, with the High
Court, that the grounds cannot be considered to be vague.
Assuming however that the grounds furnished
in this case are open to the challenge of vagueness, the further question which
arises is whether the validity of the order of detention can be sustained by
reason of the claim, in public interest, of non-disclosure of facts made by the
Under- Secretary to the Government of Bombay by means of his affidavit filed in
the High Court. Now it has been held in Atma Ram Sridhar Vaidya's case(1) by
the majority of the Court, that the constitutional right of a detenue under
article 22(5) comprises two distinct components.
1.The right to be furnished grounds of
detention as soon as may be; and 2.The right to be afforded the earliest
opportunity of making a representation against his detention (1) [1951] S.C.R.
167,184.
391 which implies, the right to be furnished
adequate particulars of the grounds of detention, to enable a proper
representation being made.
These rights involve corresponding
obligations on the part of the detaining authority. It follows that the
authority is under a constitutional obligation to furnish reasonably definite
grounds, as well as adequate particulars then and there, or shortly thereafter.
But the right of the detenue to be furnished particulars, is subject to the
limitation under article 22(6) whereby disclosure of facts considered to be
against public interest cannot be required. It is however to be observed that
under article 22(6) the facts which cannot be required to be disclosed are
those "which such authority considers to be against public interest to
disclose". Hence it follows that both the obligation to furnish
particulars and the duty to consider whether the disclosure of any facts
involved therein is against public interest, are vested in the detaining
authority, not in any other. It was accordingly attempted to be argued in the
High Court that the claim of non-disclosure made in the affidavit of the
Under-Secretary indicated a decision for nondisclosure, by the Under-Secretary
himself and that too at the time of filing the affidavit. On this assumption it
was contended that the claim for non-disclosure was invalid.
The High Court, however, on a consideration
of the material, felt satisfied that what was stated in the affidavit related
to the decision of the detaining authority itself, taken at the time. The
learned Judges expressed their conclusion as follows:
"There is nothing in the affidavit of
Mr. Bambawala to suggest that it is now that the detaining authority is
claiming privilege or applying its mind to the question of
privilege.......................... The meaning is clear that at no time it was
in public interest to disclose the details referred to in the particular
paragraph of the affidavit and there is nothing to suggest that this question
was not considered by the detaining authority at the time when the grounds were
furnished".
No argument has been addressed to us how this
con- 392 elusion is incorrect. But what has been urged before us is that the
decision not to disclose the facts as well as the ambit of the non-disclosure
must be clearly communicated to the detenue at the time when the grounds are
furnished. It is urged that if the detenue is furnished information, at least
to that extent, it will enable him to present to the Advisory Board his
difficulties in making a proper representation and to convey to it a request
for obtaining the requisite particulars from the State under section 10 of the
Act for their own information and consideration. We are unable to imply any
such obligation under article 22(5) and (6). The necessity for such a
communication would arise only if the detenue, feeling the grounds to be vague,
asks for particulars. An obligation to communicate the decision not to disclose
facts considered prejudicial to public interest may well be implied in such a
situation. But in the absence of any such request by the detenue, the non-
communication of the decision cannot be held to have hampered his
constitutional right of representation and an obligation to communicate cannot
be implied in these circumstances. In the present case there is no merit in
this contention. If the appellant bad exercised his right to ask for
particulars, at the time, from the detaining authority, there can be no doubt
that he would have been furnished then the very information which has been
supplied in paragraph 12 of the Under-Secretary's affidavit in answer to para
15(g) of the appellant's petition, both of which have been already set out
above.
A faint suggestion has been made in the
course of the arguments before us that the decision not to disclose particulars
is mala fide and that such mala fides has to be imputed in a case where no
particulars are at all furnished.
It is suggested that the power not to
disclose facts considered against public interest cannot be so exercised as to
nullify the constitutional right of the detenue for being afforded a proper
opportunity of representation. Such a contention as to the mala fide exercise
of the power is untenable in the present case having regard to the nature of
the 393 grounds on which the detention is based and the nature of activities
imputed therein to the appellant. It is unnecessary, therefore, to deal in this
case with a theoretical contention as-to whether or not article 22(6) of the
Constitution overrides the constitutional right to be furnished particulars
under article 22(5) to the extent of denying all particulars and leaving the
grounds absolutely vague.
All the contentions raised before us fail and
this appeal is dismissed.
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