Abdul Jabar Butt Vs. State of Jammu
& Kashmir [1956] INSC 69 (13 November 1956)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.
DAS, S.K.
CITATION: 1957 AIR 281 1957 SCR 51
ACT:
Preventive Detention-Legality-Time Prescribed
for communicating grounds of detention to the detenue-' As soon as may be',
Meaning of-Declaration enabling Withholding of such communication, if must be
made by Government before expiry of such time-Jammu and Kashmir Preventive
Detention Act (IV of Sambat 2011),S. s (1), Proviso.
HEADNOTE:
The two petitioners were detained under S.3
(1) Of the Jammu and Kashmir Preventive Detention Act on April 26, 1956, with a
view to preventing them from acting in a manner prejudicial to the security of
the State. No grounds were communicated to them under s. 8 (1) of the Act and
no declarations were made under the proviso of that section.
The petitioners applied to the High Court
under s. 491 of the Code of Criminal Procedure and during the pendency of those
applications, on June 30, 1956, declarations under the proviso were made by the
Government to the effect that it would be against the public interest to
communicate to the petitioners the grounds on which the orders of detention had
been made against them. On July 28, 1956, the High Court rejected the
applications. The cases of the petitioners were 52 reviewed by the Government
under s.14(2) of the Act in consultation with a person nominated for that
purpose on June 4, 1956, and it was satisfied that the petitioners should
continue to be detained and, accordingly, passed orders to that effect under s.
14 of the Act on September 26, 1956. The question was whether the declarations
were made within the time prescribed by s. 8 (1) of the Act for communicating
the grounds of detention and, if not, whether the petitioners had been lawfully
detained.
Held, that the expression 'as soon as may be'
in sub-s. (1) of s. 8 of the Jammu and Kashmir Preventive Detention Act, whereby
the Act prescribed the time within which the Government must communicate to the
detente the grounds of his detention, meant within a reasonable time, with the
understanding to do the act within the shortest possible time, from the date of
detention.
King's Old Country, Ltd. v. Liquid Corbonic
Can. Corpn. Ltd. (1942) 2 W.W.R. 603, followed.
Ujagar Singh v. The State of the Punjab,
[1952] S.C.R. 756 and Keshab Nilkanth Joglekay v. The Commissioner of Police,
Gyeater Bombay, Petition No. 602 Of 1956, decided on September 17, 1956,
referred to.
Although it might not be possible in many
cases to compute the span of time thus indicated by hours, days or months, what
was possible and the Court had to do in the facts and circumstances of each
particular case, was to find whether the act was or was not done within the
time which was reasonably convenient or reasonably requisite.
The proviso to the sub-section clearly
implied that the power it vested in the Government to exclude from the
operation of the sub-section certain class of detenues by making the required
declaration, must be exercised and such declaration made before the expiry of
the time prescribed by the sub-section for communicating to the detenue the
grounds on which the detention order against him had been made.
Hissam-Ud-Din Bandy and Others v. The State,
A.I.R. 1935 J.& K. 7, overruled.
Consequently, as in the instant cases the
affidavits filed on behalf of the Government disclosed no particular
circumstance or reason why the declarations under the proviso could not have
been made before more than two months had elapsed from the dates when the
orders of detention had become effective, the detenues must be held to have
been deprived of their liberty otherwise than in accordance with the procedure
established by the Act, embodying as it does the fundamental right guaranteed
under Art. 22 (5) of the Constitution of India, and must be released forthwith.
ORIGINAL JURISDICTION: Petition Nos. 173
& 174 of 1956.
53 Under Article 32 of the Constitution for a
writ in the nature of Habeas Corpus.
J.B. Dadachanji, Amicus Curiae, for the
petitioners.
M.C. Setalvad, Attorney-General for India,
Porus A. Mehta and R.H. Dhebar, for the respondent.
1956. November 13. The Judgment of the Court
was delivered by DASC.J.-These two petitions raise a common question of
interpretation of s. 8 of the Jammu and Kashmir Preventive Detention Act, 2011,
being Act IV of (Sambat) 2011 (hereinafter referred to as the Act). Both the
petitions have been filed under Art. 32 of the Constitution of India,
complaining that the petitioners have been and are being wrongfully detained
under the Act and praying for their immediate release.
By two separate orders made by the Jammu and
Kashmir Government on April 26,1956, in exercise of the powers conferred on it
by sub-s. (1) of s. 3 of the Act the Government ordered that the petitioners be
detained. Each of the orders recited that the Government had been satisfied
with respect to each of the petitioners that with a view to preventing him from
acting in a manner prejudicial to the security of the State, it was necessary
to make an order that he be detained. No grounds having been supplied to either
of the petitioners nor any declaration having been made under the proviso to s.
8 (1) of the Act for a considerable time, each of the petitioners applied to
the High Court of Jammu and Kashmir under s. 491 of the Code of Criminal
Procedure for an order in the nature of a writ of habeas corpus. During the
pendency of those applications on June 30, 1956, that is to say, more than two
months after the date of the original order of detention, a declaration was
made by the Government under the proviso to s. 8 (1) to the effect that it
would be against the public interest to communicate to the detenues the grounds
on which the detention orders had been made. On July 28, 1956, both the
petitions were dismissed by the High Court. It appears that the case of each of
the detenues had 54 been reviewed by the Government under sub-s. (2) of s. 14 of
the Act in consultation with a person nominated by the Government for that
purpose on June 4, 1956, and the Government was satisfied that the detenues
should continue to be detained. Accordingly on September 26, 1956, in exercise
of the powers conferred by s. 14 of the Act the Government issued two separate
orders directing that the said two detenues do continue to be detained. In the
meantime on September 19, 1956, the two present applications were filed before
this Court. The question is whether the declaration under the proviso to s. 8
(1) of the Act was made within the time fixed by s. 8 (1) of the Act for the
communication to the detenues of the grounds on which the orders of detention
had been made, and 'if not, whether the detention became illegal.
These two petitions came up for hearing
before a Division Bench of this Court on October 20,1956, when the attention of
the Court was drawn to a Full Bench decision of the Jammu and Kashmir High
Court in Hissam-Ud-Din Bandy and Others v. The State (1), where it was held
that though it was highly undesirable that a detenue should remain in suspense,
there was no time limit fixed by the proviso for making a declaration and that,
therefore, where the detention was for reasons of security of State, the mere fact
that the declaration' had been delayed beyond a reasonable time after the date
of detention did not vitiate the detention.
As the decision of a Full Bench consisting of
three Judges required consideration, the Division Bench took the view that the
petitions should be placed before a larger Bench.
Hence the petitions have come up before us
for final disposal.
Some of the provisions of the Constitution of
India, subject to some exceptions and modifications, were extended to the State
of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir)
Order, 1954, made by the President in exercise of the, powers conferred on him
by cl. (1) of Art.
370 of the Constitution. Amongst other things
in Art. 35 as (1) A.I.R. 1955 J. & K. 7.
55 extended to Jammu and Kashmir a new clause
was added, namely, " (c) no law with respect to preventive detention made
by the legislature of the State of Jammu and Kashmir, whether before or after
the commencement Of the Constitution (Application to Jammu and Kashmir) Order,
1954, shall be void on the ground that it is inconsistent with any of the
provisions of this Part, but any such law shall, to the extent of such
inconsistency, cease to have effect on the expiration of five years from the
commencement of the said Order, except as respects things done or omitted to be
done before the expiration thereof." Therefore, the detention of the
petitioners cannot be questioned for five years from the date of the
President's order on the ground that the Act is inconsistent with any of the
fundamental rights guaranteed under Part III of the Constitution. The legality
of the petitioners' detention will, therefore, depend on and have to be
considered on a true construction of the provisions of the Act.
Turning now to the Act we come to s. 3, which
gives to the Government and some of its officers specifically enumerated
therein the power to make an order of detention against certain persons. The
condition precedent to the making of such order is that the Government must be
satisfied with respect, to any person that with a view to preventing him from
acting in any manner prejudicial to certain enumerated objects it is necessary
to make an order of detention. The enumerated objects include 4 items, namely,
(i) security of the State or (ii) the maintenance of public order or(iii)the
maintenance of the loyalty of and discipline among the members of the police
forces of the State or (iv) the maintenance of supplies and services essential
to the community. There is also a provision in cl. (b) of sub-s.
(1) relating to a foreigner to which it is
not necessary for the present purposes to refer. As soon as an order. is.
made under s. 3, the provisions of S. 8 come
into play.
Section 8 on a true construction of which our
decision of these petitions will depend runs as follows 56
8. (1) When a person is detained in pursuance
of a detention order, the authority making the order shall, as soon as may be,
communicate to him the grounds on which the order has been made, and shall
afford him the earliest opportunity of making a representation against the
order to the Government:
Provided that nothing contained in this
subsection shall apply to the case of any person detained with a view to
preventing him from acting in any manner prejudicial to the security of the
State if the Government by order issued in this behalf declares that it would
be against the public interest to communicate to him the grounds on which the
detention order has been made.
(2) Nothing in sub-s. (1) shall require the
authority to disclose facts which it considers to be against the public
interest to disclose.
Sub-section (1) without the proviso is only a
reproduction in substance of the provisions of cl. (5) of Art. 22 of the
Constitution.
Sub-section (1) imposes on the Government two
duties, namely, (1) the duty of communicating to the detenue the grounds on
which the order has been made and (ii) the duty of affording him the earliest
opportunity of making representation against the order to the Government. The
first duty is to be performed " as soon as may be'. Quite clearly the
period of time predicated by the phrase 'as soon as may be' begins to run from
the time the detention in pursuance of the detention order begins. The question
is what is the span of time, which is designated by the words " as soon as
may be'? The observations of Dysant, J., in King's Old Country, Ltd. v. Liquid
Carbonic Can. Corpn., Ltd. (1), quoted in Stroud's Judicial Dictionary, 3rd
edition, vol. 1 page 200, are apposite. Said the learned Judge, " to do a
thing I as soon as possible means to do it within a reasonable time, with an
understanding to do it within the shortest possible time." Likewise to
communicate the grounds 'as soon as may be' may well be said to mean to do so
(1) (1942) 2 W.W.R. 603, 606 57 within a reasonable time with an understanding
to do it within the shortest possible time. What, however, is to be regarded as
a reasonable time or the shortest possible time? The words 'as soon as may be'
came for consideration before this Court in Ujagar Singh v. The State of the
Punjab (1).
At pages 761-762 this Court observed that the
expression meant with a " reasonable despatch " and then went on to
say that "what was reasonable must depend on the facts of each case and no
arbitrary time limit could be set down." In Keshav Nilakanth Joglekar v.
The Commissioner of Police Greater Bombay and 2 Other8 (2) the word "
forthwith " occurring in s. 3(3) of the Indian Preventive Detention Act
(IV of 1950) came up for consideration. After observing that the word
"forthwith " occurring in s. 3(3) of that Act did not mean the same
thing as "as soon as may be " used in s. 7 of the same Act and that
the former was more peremptory than the latter, this Court observed that the
time that was allowed to the authority to communicate the grounds to the
detenue and was predicated by the expression 'as soon as may be' was what was
"reasonably convenient" or "reasonably requisite." Whenever
the question of reasonableness arises in computing the period of time the Court
has perforce to have regard to the particular circumstances of the case in
which the question arises for decision. It may not be possible in many cases to
affirmatively say or to precisely quantify the period of time by reference to
hours, days, or months; nevertheless, it is possible having regard to the
circumstances of the case, to say whether the thing done was or was not done
'as soon as may be i.e., within the time which was reasonably convenient or
requisite. It cannot be disputed and indeed it has not been disputed by the
learned Attorney-General that sub-s. (1) does prescribe a period of time within
which the communication is to be made and this time begins to run from the date
the detention under the order takes effect.
(1) [1952] S.C.R. 756.
(2) Supreme Court Petition No. 102 of 1956,
decided on September 17,1956.
8 58 The proviso to sub-s. (1), however,
makes the entire sub-s.
(1) inapplicable in certain circumstances,
namely, (1) where a person is detained with a view to preventing him from
acting in any manner prejudicial to the security of the State and (ii) the
Government by order issued in that behalf declares that it would be against the
public interest to communicate to him the grounds on which the detention order
has been made. The learned Attorney-General contends that the proviso in terms
does not specify any time within which this power is to be exercised by the
Government, that is to say, it does not specify any time within which the
Government must make the declaration and he contends that there is no reason to
import the time limit laid down in sub-s. (1) into the proviso. So also it has
been held by the Full Bench of the Jammu and Kashmir High Court in the case
referred to above. Learned Attorney-General urges that this omission to specify
the period of time in the proviso was deliberate and is in consonance with the
scheme of the Act. He starts with the contention that the object of commuilicating
the grounds is to afford the detenue an opportunity to make a representation to
the Government against the order. He then refers to s. 10 which directs that
the Government shall within 6 weeks from the date of detention under the order
place before an Advisory Board constituted by it under section 9 the grounds on
which the order has been made and the representation, if any, made by the
detenue and in a case where the order has been made by an officer, also the
report made by the officer under sub-s.
(3) of s. 3. He next points out that this
requirement of s.
10 is $'subject to the provisions of s.
14." Then he takes us to s. 14 of the Act. That section provides that notwithstanding
anything contained in this Act any person detained under a detention order made
in any of the classes of cases or in any of the circumstances therein mentioned
may be detained or continued in detention without obtaining the opinion of the
Advisory Board for a period longer than 3 months but not exceeding five years
from the date of detention. The two classes of persons who may be detained
without 59 obtaining the opinion of the Advisory Board comprise persons who
have been detained with a view to preventing them from acting in any manner
prejudicial to (1) the security of the State and (ii) the maizitenance of
public order. The cases of persons falling under these,, two classes are by
sub-s.
(2) of s. 14 to be reviewed within a period
of 6 months from the date of detention and thereafter at intervals of every
months if the detention continues, in consultation with a person possessing
certain qualification who may be nominated in that behalf by the Government.
Going back then to the proviso sub-s. (1) of s. (8) the Attorney-General points
out that the declaration contemplated by the proviso can only be made in the
case of a person detained with a view to preventing him from acting in any
manner prejudicial to the security of the State. By virtue of s. 14 the case of
such a person will not go to the Advisory Board, but will have to be reviewed
in consultation with the person nominated by the Government under s. 14.
Therefore, it will be enough if the grounds are communicated to such a detenue
within 6 months from the date of detention when his case will be reviewed under
sub-s. (2) of s. 14. We are unable to accept this line of reasoning as sound.
In the first place it is a fundamental rule
of construction that a proviso must be considered with relation to the
principal matter to which it stands as a proviso.
Therefore, the proviso in question has to be
construed harmoniously with the provisions of sub-s. (1) to which it is a
proviso. As we have already mentioned, immediately after the making of the
order, sub-s. (1) of s. 8 begins to operate. If the grounds are not
communicated to the detenue within the period of time described by the
expression 'as soon as may be' the detenue becomes deprived of his statutory
right under sub-s. (1) and his detention in such circumstances becomes illegal
as being otherwise than in accordance with procedure prescribed by law. In
order to prevent this result in certain specified cases the proviso authorises
the Government to issue the requisite declaration so as to exclude entirely the
operation of sub-s. (1). It, therefore, stands to reason and is consistent with
60 the principle of harmonious construction of statutes that the power of
issuing a declaration so as to prevent the unwanted result of the operation of
sub-s. (1) should be exercised before that very result sets in.
In the second place it will be recalled that
the order of detention may be made under s. 3(1)(a) of the Act against a person
with a view to preventing him from acting in any manner prejudicial to the four
objects enumerated therein.
As soon as an order of detention is made
under s. 3(1)(a), the authority making the order is by s. 8(1) placed under the
obligation to communicate the grounds of the detention 'as soon as may be.' If
no declaration is made under the proviso, s. 8(1) will operate in the case of
every detenue to whichever of the four categories he may belong. The proviso
enables the Government to prevent the application of sub-s. (1) to certain
class of detenues only. It follows that the detenues who do not fall within
that clause must have the grounds communicated to them and there is no power
given to the Government to exclude the operation of sub-s. (1) from those
cases. It will be noted that under the proviso the Government may exclude the
application of sub-s. (1), only in the case of a person who has been detained
with a view to prevent him from indulging in activities prejudicial to the security
of the State and only if the Government declares that it will be against the
public interest to communicate the grounds to him. Even if a person has been
detained on account of his activities being prejudicial to the security of the
State the Government cannot exclude the operation of sub-s. (1) from his case
unless the Government is prepared to declare and declares that it would be
against the public interest to communicate to him the grounds on which the
detention order has been made. Therefore, those persons who have been detained
on account of their activities being prejudicial to the security of the State,
but with regard to whom the Government cannot or does not think fit to declare
that it would be against the public interest to communicate to them the
grounds, will continue to be governed 'by sub-s. (1) and such persons, like the
persons belonging to the other three 61 categories, will be entitled to have
the grounds communicated to them 'as soon as may be.' As such persons will be
governed by sub-s. (1), it becomes clearly incumbent upon the Government to
decide within the time envisaged by sub-s.
(1) whether it should make, the requisite
declaration or not, for otherwise such persons will be seriously prejudiced.
Suppose the Government does not make a declaration with regard to persons
falling within that class within that time but subsequently decides that it
would not be against the public interest to communicate to them the grounds,
then the absence of such a declaration under the proviso will brings about the
unfortunate result that those persons will be deprived of their valuable right
of having the grounds communicated to them 'as soon as may be' and to have the
earliest opportunity afforded to them of making a representation. In the context
of the liberty of the subject we must adopt a construction which would have the
effect of preventing such' an undesirable result.
Further under section 14 the person falling
under the two categories mentioned therein "may" be detained or
continued in detention without obtaining the' opinion of an Advisory Board for
a period longer than 3 months. There is nothing to suggest that the cases of
all persons falling within the two categories must necessarily not be referred
to the Advisory Board, but must be reviewed under sub-s. (2).
Persons against whom orders of detention are
made with a view to preventing them from acting in any manner prejudicial to
the security of the State and with respect to whom' the Government does not
consider that it would be' against the public interest to communicate to them
the grounds, will be entitled, under sub-s. (1), to have their grounds 'as soon
as may be' and there is nothing to prevent the Government from sending their
cases together with the grounds and their representations, if any, to the
Advisor Board under s. 10 of the Act.' Therefore, with respect to such persons
the grounds' must be supplied 'as soon as may be' under sub-s. (1)' and cannot
be postponed for 6 months referred to in section 14.
62 Finally the review contemplated by sub-s.
(2) of s. 14 is to be made "within" a period of 6 months from the
date of detention. There is no reason to hold that in every case such a review
will be held on the last day of that period of 6 months. With regard to a
person falling within the category of persons whose activities are prejudicial
to the security of the State but with respect to whom the Government does not
think fit to make any declaration under the proviso, he would be entitled to
have the grounds communicated to him 'as soon as may be' and he may immediately
make such cogent and convincing representation to the Government as may induce
the Government to release him forthwith without waiting for the last day of the
6 months.
For reasons stated above we see no difficulty
in construing the proviso as implying that the time for making the declaration
should be co-terminous with the time fixed for communicating the grounds under
sub-s. (1). When the detaining authority makes the order of detention, it
specifies in the preamble to the order why IV-he order is made, namely, whether
it is made with a view to preventing the detenue from acting in any manner
prejudicial to one or other of the four objects enumerated in s. 3(1)(a). If
the Government can make-up its mind that the detention order is made against a
particular person on account of his activities being Prejudicial to the
security of the State, there is no reason why the Government should not at the
same time or 'as soon as may be' thereafter make up its mind as to whether or
not it would be against the public interest to communicate to such person the
grounds on which the detention order is made. In our )pinion the authority
vested in the Government to make a declaration contemplated by the proviso must
be exercised before the expiry of the span of time Predicated by the expression
'as soon as may be' occurring in sub-s. (1). Such a construction will ensure
Harmonious operation of ss. 8, 10 and 14. These aspects of the matter do not
appear to have been pointedly bought to the notice of the Full Bench of the Jammu and Kashmir High Court and in our opinion that decision cannot be accepted as
correct.
63 There is nothing in the affidavits filed
by the respondent showing that there was any particular circumstance or reason
for which the declarations could riot have been made earlier than June 30, 1956, when they were actually made. For reasons stated above the detention of the
petitioners became illegal and they may well complain of having been deprived
of their liberty otherwise than in accordance with procedure established by the
Act, which embodies the fundamental right guaranteed under Art. 22(5) of the
Constitution. In the premises the petitioners are entitled to the relief they
pray for. We accordingly allow both the petitions and direct the petitioners to
be released forthwith.
Applications allowed.
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