P. L. Lakhanpal Vs. Union of India
[1966] INSC 106 (19 April 1966)
19/04/1966 SARKAR, A.K. (CJ)
SARKAR, A.K. (CJ) HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.
DAYAL, RAGHUBAR
CITATION: 1967 AIR 243 1966 SCR 209
CITATOR INFO:
F 1967 SC 908 (1,5) OPN 1967 SC1507 (5) RF
1980 SC1789 (107)
ACT:
Defence of India Rules, 1962 r. 30(1) (b)-If
ultra vires s. 3(2)(15) (i) of Defence of India Act-Constitution of India, Art.
352-Proclamation-If to state, satisfaction of Emergency.
HEADNOTE:
The petitioner, the editor of a newspaper,
was detained under r. 30(1)(b) of the Defence of India Rules, 1962. He filed a
petition under Art. 32 of the Constitution for a writ of habeas corpus
challenging the legality of the detention order on various grounds. Dismissing
the petition, HELD: Rule 30 (1) (b) cannot be said to be ultra vires of s. 3
(2) (15)(i) of the Defence of India Act for the reason that it does not state
that the satisfaction of the authority making the order of detention has to be
on grounds appearing to it to be reasonable. The rule requires only that the
detaining authority must be satisfied that the detention is necessary for the
purposes mentioned and that is what the latter part of the section under which
it was made also says. This part does not contain any requirement as to
satisfaction on reasonable grounds. The rule has clearly been made in terms of
the section authorising it.
[211 F] Article 352 of the Constitution does
not require the proclamation to state the satisfaction of the President about
the Emergency. The Article requires only a declaration of emergency threatening
the security of India by one of the causes mentioned. The words "to that
effect" can have no other meaning. A proclamation ceases to have effect
only by one of the events mentioned in cl. 2 of Art.
352 of the Constitution.[212 C] Section
3(2)(15)(iv) of the Defence of India Act and r. 30-A of the Defence of India
Rules, does not give a right to make a representation. Their effect is to
provide a review of the detention order by the authorities and in the manner
mentioned. Rule 23 of the Defence of India (Delhi Detenus) Rules, 1964, states
that a detente will be allowed to interview a legal practitioner for the
Purpose of drafting his representation against his detention. [213 C-D].
The fact that newspapers and men connected
with them may be dealt with under other provisions of the Art and Rules does
not prevent detention of such persons under r. 30(1)(b) of the Defence of India
Rules. [213 H] The order need not mention the part of India which was to be
Prejudicially affected by the acts of the detenue.
ORIGINAL JURISDICTION: Writ Petition No. 47
of 1966.
Petition.under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
The petitioner appeared in person.
210 Niren De, Additional Solicitor-General,
N. S. Bindra, R. H. Dhebar and B.R.G.K. Achar, for the respondent.
R. V. S. Matti, for the intervener.
The Judgment of the Court was delivered by
Sarkar, CJ. The petitioner, Puran Lal Lakhanpal, was arrested and detained
under cl. (b) of sub-r. (1) of Rule 301 of the Defence of India Rules. 1962 by
an order passed on December 10, 1965 and directed to be detained in Central
Jail, Tehar, New Delhi. The order stated that:
"WHEREAS the Central Government is
satisfied that with a view to preventing Shri P.L. Lakhanpal. son of late Shri
Diwan Chand Sharma........from acting in a manner prejudicial to the Defence of
India and Civil Defence, public safety and the maintenance of public order, it
is necessary that he should be detained;
NOW, THEREFORE..............the Central
Government hereby directs that the said Shri P. L. Lakhanpal be detained."
He has moved this Court under Art. 32 of the Constitution by a petition
presented on December 24, 1965 for a writ of habeas corpus directing his
release. He challenges the legality of the detention order on various grounds
which we now proceed to consider.
The first ground is that r. 30(1)(b) is ultra
vires s. 3(2)(15)(1) of the Defence of India Act under which the Rules were
made. Sub-s.(1) of s. 3 contains the general power to make rules for certain
purposes. Sub-section (2) states that the rules made may provide for and many
empower any authority to make orders providing for all or any of the following
matters, namely:
"(15) notwithstanding anything in any
other law for the time being in force........................
(i) the apprehension and detention in custody
of any person whom the authority empowered.........suspects, on grounds
appearing to that authority to be reasonable .................... acting, being
about to act or being likely to act in a manner prejudicial to the defence of
India and civil defence, the security of the State, the public safety or
interest the maintenance of public order........or with respect to whom that
authority is satisfied that his apprehension and detention are necessary for
the purpose of preventing him from acting in any such prejudicial manner."
211 Rule 30(1)(b) is in these terms:
"The Central Government...............
if it is satisfied with respect to any particular person that with a view to
preventing him from acting in any manner prejudicial to the defence of India
and civil defence, the public safety, the maintenance of public
order............... may make an order- (b) directing that he be
detained." It will be noticed that the rule does not say that the
satisfaction mentioned in it shall be on grounds appearing to the authority
concerned to be reasonable. It is said that by omitting these words the rule
has gone outside the section which mentions them, and is, therefore, ultra
vires.
This contention is untenable. It overlooks
the fact that the latter part of the section states that the rules made under
it may also provide for the apprehension and detention of a person "with
respect to whom that authority is satisfied that his apprehension and detention
are necessary" for certain purposes; this part does not contain any
requirement as to satisfaction on reasonable grounds. This part of the section
is independent of the earlier part under which the apprehension and detention
can be directed only when the authority suspects on certain grounds appearing
to it to be reasonable that a person is about to act in a certain manner. It is
of some significance to point out that the second part of the section is
preceded by the word 'or'. That puts it beyond doubt that the rules made under
it may provide for detention in two alternative cases, for the first of which
only it is necessary that the authority should entertain a suspicion on grounds
appearing to it to be reasonable. That requirement is absent in the case of a
rule made under the second part of the section. Rule 30(1)(b) cannot be said to
be ultra vires the section for the reason that it does not state that the
satisfaction of the authority making the order of detention has to be on
grounds appearing to it to be reasonable. The rule requires only that the
detaining authority must be satisfied that the detention is necessary for the
purposes mentioned and that is what the latter part of the section under which
it was made also says. The rule has clearly been made in terms of the section
authorising it.
It was next said that the Proclamation of
Emergency made by the President under Art. 352 of the Constitution which
prevented the Act from being illegal, was not in terms of the article as it did
not state that the President was satisfied that a grave emergency existed. It
is true that the Proclamation did not do that. It stated:
" In exercise of the powers conferred by
clause (1) of article 352 of the Constitution, I Sarvapalli Radhakrishnan,
President of India, by this Proclamation declare that a grave emergency exists
whereby the security of India is threatened by external aggression." 212
We, however, find nothing in the Article which requires the Proclamation to
state the satisfaction of the President about the emergency. Article 352(1)
reads, "If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory thereof is threatened,
whether by war or external aggression or internal disturbance, he may, by
Proclamation, make a declaration to that effect." The Article requires
only a declaration of emergency threatening the security of India by one of the
causes mentioned. The words "to that effect" can have no other
meaning. The power to make the declaration can no doubt be exercised only when
the President is satisfied about the emergency, but we do not see that the
Article requires the condition precedent for the exercise of the power, that
is, the President's satisfaction, to be stated in the declaration. The
declaration shows that the President must have satisfied himself about the
existence of the emergency for in these matters the rule that official acts are
presumed to have been properly performed applies and there is nothing proved by
the petitioner to displace that presumption. We were referred to certain other
provisions, viz., Art. 311(2)(c) of the Constitution and r. 30(1)(b) of the
Rules and it was contended that these provisions require the satisfaction to be
stated. It is unnecessary to decide whether they so require. Even if they did,
the requirement of the statement of the President's satisfaction in the present
case has to be decided on the terms of Art. 352 alone. We have said that this
Article does not contain any such requirement. It is of interest to point out
here that the petitioner stated in his petition that he extended his full
support to the Government on the Proclamation of Emergency. Obviously he could
not have done so if he had any doubt about the legality of the Proclamation.
Then it was said that the Proclamation should have stated the direction from
which the external aggression which it mentioned was apprehended. We find
nothing in the Article to require the Proclamation to state this. The
Proclamation was issued on October 26, 1962 when, it is well known, India's
integrity was threatened by China.
It was also stated that the continuance of
Emergency which was declared over three years ago is a fraud on the
Constitution. We were told that the President in his address to the Parliament
in February this year did not state that the Emergency continued to exist. The
President's address has not been produced, and we do not know what it
contained. However that may be, Art. 352 itself by cl. (2) provides that a
Proclamation issued under cl. (1) may be revoked by a subsequent Proclamation
and shall cease to operate at the expiration of two months unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament. This clause also states that the Proclamation shall be laid before
each House of Parliament. It has not 213 been stated that the Houses of
Parliament did not approve of the Proclamation within the period of two months.
It would appear, therefore, that the only way a Proclamation ceases to have
effect is by one of the events mentioned in this clause. None of them has
happened. Nothing contained in an address by the President to the Houses of
Parliament can operate to terminate the Proclamation. In this connection it was
also said that 'external aggression' means armed aggression and as for some
time past there was no armed, aggression against the territory of India, the
continuance of the Proclamation was unjustified. This contention must also
fail, on the ground which we have just mentioned.
Another challenge to the legality of the
detention was that the petitioner had not been allowed to make any
representation against his detention. Our attention was drawn in this
connection to s. 3(2) (15)(iv) of the Act and r. 30-A of the Rules and also to
r. 23, of the Defence of India (Delhi Detenues) Rules, 1964. The two first
mentioned provisions do not, in our opinion, give a right to make a
representation. Their effect is to provide a review of the detention order by
the authorities and in the manner mentioned. The last one states that a detenue
will be allowed to interview a legal practitioner for the purpose of drafting
his representation against his detention. It has not been stated in the
petition that the petitioner was pre- vented from making any representation or
denied the opportunity to consult a legal practitioner. All hat is said is that
he had not been furnished particulars of his writing s and materials on which
the satisfaction of the Central Government mentioned in the order was based and
that had prevented him from making a representation to the Government against
his detention. This contention seems to us unwarranted. There is nothing to
show that the detention order had been based on petitioner's writings, nor has
our attention been drawn to any provision which requires the detaining
authority to supply the materials on which they had formed their satisfaction
about the necessity of the detention.
Then it was said that the order of detention
violated s. 44 of the Act and s. 3(2)(4)(b), (6), (7)(a)(b)(c) and (d) and rr.
41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the
petitioner was the editor of and ran a newspaper and that action against him
could only be taken under the sections and rules earlier mentioned and not
under r. 30(1)(b). This contention seems to us to be entirely groundless. The
provisions referred to no doubt deal with newspapers and the manner of controlling
them but they in no way lead to the conclusion that a newspaper editor may not,
if the occasion arises, be detained under r.
30(1)(b). The fact that newspapers and men
connected with them may be dealt with in a certain manner does not prevent
detention of such persons under r. 30(1)(b). It was also said that r. 30(1)(b)
requires that the part of India which is to be prejudicially affected by the
acts of the detenue has to be mentioned in the order. This is an idle
contention. The 214 rule no doubt says that the detention may be ordered to
prevent a person from acting in a manner prejudicial to the maintenance of
peaceful conditions in any part of India, but it also says that the detention
can be ordered for preventing a person from acting in a manner prejudicial to
the defence of India, civil defence and public safety and maintenance of public
order with regard to which there is no requirement provided that they should be
confined to any part of India or that part should be mentioned in the order of
detention. The order in this case was made on these grounds. The petition
furnishes no material for saying that the terms of s. 44 have been violated.
There is nothing to show that the detention interfered with the petitioner's
avocation in life in a manner not justified by that section.
The last ground taken was that the detention
order was mala fide because the Home Minister had not sworn an affidavit to say
that he was satisfied about the necessity for the detention. There is a bald
allegation in the petition that the detaining authority had not applied its
mind to the matter before making the order of detention. This part of the
petition was verified as true to the petitioner's knowledge. This verification
was plainly false and, therefore, the allegation in the petition required no
answer. However, that may be, a Deputy Secretary to the Home Ministry of the
Government of India has sworn an affidavit stating as true to his knowledge
that the materials in connection with the activities of the petitioner were placed
before the Union Home Minister and, on a consideration of those materials, the
Minister was satisfied that the detention order was necessary.
The result is that this petition fails and it
is accordingly dismissed.
Petition dismissed.
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