P.L. Lakhanpal Vs. The Union of India
& Anr [1967] Insc 57 (7 March 1967)
07/03/1967 SHELAT, J.M.
SHELAT, J.M.
HIDAYATULLAH, M.
MITTER, G.K.
CITATION: 1967 AIR 1507 1967 SCR (3) 114
CITATOR INFO :
R 1967 SC1797 (1,3,6,7,8) APL 1968 SC 327
(1,2,3,4,7,8) RF 1968 SC 765 (1,17) E 1972 SC 689 (14) R 1974 SC 87 (11)
ACT:
Defence of India Rules, 1962, Rules 30(1) (b)
and 30A(9)Review of detention order--if quasi judicial function--opportunity to
detenu to make representation.
HEADNOTE:
The petitioner was arrested and detained by
an order dated December 10, 1965 under Rule 30(1)(b) of the Defence of India
Rules, 1962. On June 11, 1966, he was served with an order of the Central
Government under Rule 30A(9) to the effect that after a review of the detention
order, it had been decided to continue his detention. Writ petitions filed by
the petitioner challenging these two orders on various grounds were dismissed.
On December 2, 1966, he was served with another order under Rule 30A(9) stating
that the detention order had been further reviewed and upon such review the
Government had decided that the detention should continue. The petitioner
challenged this order by the present writ petition on the ground, inter alia,
that it was passed in disregard of the duty of the Government to act
judicially, implicit in the power conferred on it under Rule 30A(9) to continue
detention, both the function to review and the decision thereon being judicial
or quasi judicial.
It was contended on behalf of the respondent
(i) that the order of detention being a purely executive order, an order of
review under Rule 30A(9) of the very circumstances on which the detention order
was made and subsequent circumstances would also be an executive order; and
(ii) that the impugned order was passed after considering various materials
against the petitioner.
HELD, allowing the petition : (i) The
function entrusted to the authority under Rule 30A(9), as distinguished from
the power under Rule 30(1)(b), is quasi-judicial and the decision which it has
to arrive at is a quasi-judicial decision.
To say that because a function is in its
inception executive in character,, it retains the executive character
throughout would not be correct. Besides, the function under Rule 30(1)(b) and
that under Rule 30A(9) is not one and the same.
The former is completed -,is soon -as an
order of detention is made; the latter is independent of the former and is to
be exercised after detention has gone on for a period of six months. Whereas
the function under Rule 30(1)(b) is executive, the one under Rule 30A(9) is
quasi-judicial and therefore in exercising it the rules of natural justice have
to be complied with. [123 D-F] (ii) It was a admitted that the petitioner was
not given any opportunity of representing his case or to correct or contradict
the evidence on which the Government admittedly relied before passing the order
of December 2. 1966. There was therefore a breach of principles of natural
justice and the order of continuation of detention was illegal -and must be
quashed. [123 F-G; 124 C-D] Sadhu Singh v. Delhi Administration, [1966] 1
S.C.R. 243, dissented from.
115 P.L. Lakhanpal v. The Union of India and
Anr., [1967] 1 S.C.R. 433,P. L. Lakhanpal v. The Union of India and another,
[1966] Supp. S.C.R. 209, Board of Education v.
Rice, [1911] A.C. 182; Local Government Board
v. Arlidge, [1915] A.C. 120 at p. 132; Province of Bombay v. Kusaldas S. Advani,
[1950] S.C.R. 621, 725; Nagendra Nath Bora, v. The Commissioner of Hills
Division, [1958] S.C.R. 1240;
Radheshyam Khare v. The State of Madhya
Pradesh, [1959] S.C.R. 1440; Gullapalli Nageswara Rao v. Andhra Pradesh State
Road Transport Corporation, [1959] Supp. 1 S.C.R.
319; Shivji Nathubhai v. The Union of India,
(1960] 2 S.C.R.
775; Board of High School and Intermediate
Education, U.P. v. Ghanshyam, [1962] Supp. 3 S.C.R. 36; and R. Johnson &
Co. (Builders) Ltd. v. Minister of Health, [1947] 2 All E.R.
395, referred to.
ORIGINAL JURISDICTION : Writ Petition No. 258
of 1966.
Petition under Art. 32 of the Constitution of
India for the enforcement of the Fundamental Rights.
The petitioner appeared in person.
R. H. Dhebar, R. N. Sachthey, and S. S.
Javali, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. The petitioner was arrested by an order dated December 10, 1965
under Rule 30(1) (b) of the Defence of India Rules, 1962 and was detained in
Central Jail, Tehar, New Delhi. On the 24th December, 1965, he filed writ
petition No. 47 of 1966 in this Court challenging his detention, inter alia, on
the grounds that ( 1 ) Rule 30 ( 1 ) (b) was ultra vires s. 3 (2) (15) (i) of
the Defence of India Act, (2) that rule 23 of the Defence of India (Delhi
Detenues) Rules, 1964 gave him a right to make a representation by providing
review of the said detention order and that his said right was disregarded by
his having been prevented from making such representation, (3) that the said
order was in breach of s. 44 of the Act, and (4) that it was made in mala fide
exercise of power. That petition was dismissed on April 19, 1966. The
petitioner was thereafter served with an order dated June 11, 1966 passed by
the Central Government under Rule 30A(9) of the said Rules. The said order,
inter alia, stated that "the said detention order has been reviewed by the
Central Governmentand upon such review the Central Government hereby decides
that Shri P. L. Lakhanpal-should continue to be detained with a view to
preventing him from acting in any manner prejudicial to the Defence of India
and Civil Defence". The petitioner filed Writ Petition No. 137 of 1966
challenging the validity of the said original order of detention and the order
dated June 11, 1966. Rule 30A(9) provides as follows:"Every detention
order made by the Central Government or the State Government shall be reviewed
at 116 intervals of not more than six months by the Government who made the
order and upon such review that Government shall decide whether the order
should be continued or cancelled".
That petition also was dismissed by judgment
dated September 21, 1966. It appears that the petitioner thereafter addressed
certain letters and sent representations to the Home Ministry stating therein
that he was now clearly of the opinion that the demand for plebiscite in
Kashmir by Pakistan had become untenable as a result of certain events having
taken place, that the Tashkent declaration had altered relations between
Pakistan and India that the said declaration and other events which had since
taken place had completely changed the complexion of Pakistan's stand on
Kashmir and that he was also now of the opinion that the application of some of
the provisions of the Indian Constitution to Kashmir was correct. He also
represented that there were more pressing problems in the country requiring his
attention than the question of Kashmir and the relations between the two
countries on that question. By an order dated the 2nd December, 1966, the
Government of India directed the further detention of the petitioner stating
therein that "the said detention order has been further reviewed by the
Central Government and upon such review the Central Government hereby decides
that the order for the detention of the said Shri P. L. Lakhanpal should be
continued". The present petition challenges the validity of this order.
The petitioner contended (i) that the said
order is a mechanical and casual order passed without taking into consideration
all the facts and circumstances relevant under Rule 30(1) (b) and Rule 30A(9).
(ii) That it is passed in utter disregard of
the duty of the Government to act judicially, implicit in the power conferred
on it under Rule 30A(9) to continue detention, both the function to review and
the decision thereon being judicial or quasi-judicial.
(iii) That the said order is ultra vires S.
44 of the Act where under the Government is required to decide whether
detention is the minimum action necessary on the facts and circumstances of the
case.
(iv) That the said order is mala fide and
illegal being contrary to the policy 'statements made on behalf of the
Government in Parliament from time to time to restrict the operation of the Act
and the Rules :
117 (a) for purposes of defence only, and (b)
in border States; and (v) That the said order is mala fide as it is motivated
by punitive rather than preventive considerations.
In reply to these contentions the
counter-affidavit filed by the Deputy Secretary in the Ministry of Home Affairs
states that between the 10th of December, 1965 and the 2nd of December, 1966,
the petitioner had made representations either directly or through certain
persons and had addressed letters explaining his position, that on the basis of
those representations and letters and the report about his past activities
called for from the police and after considering those materials the Central
Government felt satisfied that it the petitioner were to be released, he was
likely to resume his prejudicial activities and, therefore, his detention
should be continued. The affidavit further alleged that at the time of the review
of his case on December 2, 1.966 "the said letters, papers,
representations and the report from the police were placed before the Minister
who had considered the same and he was satisfied that it was necessary to
continue the detention of the petitioner". It also stated that it was not
possible todisclose to the detenu the material on the basis of which the
Central Government came to the said conclusion, that the order of detention was
to prevent the petitioner from indulging in prejudicial activities mentioned in
Rule 30(1)(b) and that the apprehension of his indulging in such activities
would have to be judged and was judged from representations made by him. It is
thus clear from the counter-affidavit that the detaining authority considered
(1) the representations and letters made and written by the petitioner, (2) the
report of the police authorities in regard to the past activities of the
petitioner (there being no question of any present activities as he was in jail
since the 2nd of December, 1965) and (3) the events which had since his
detention taken place. According to the Central Government, it came to the
decision that continuation of his detention was necessary as it was satisfied
that if he were to be released he would continue the -same anti-national
activities for which he was detained and that his professions that there was a
change in his view was only a ruse to get himself released from detention.
Now, there is no doubt that under the Act as
also under the said Rules the Government is the special forum on whose
subjective satisfaction an order of detention for the considerations set out in
Rule 30 (1) (b) can be made and on whose decision arrived ,it on the
considerations and in the manner -prescribed by Rule 30A(9) such detention can
be continued. However, as held in P. L. Lakhanpal v. The Union of India and
Anr., (1) there is a (1) [1967] 1 S.C.R.433.
118 difference in the power to detain and the
power to continue such detention beyond a period of six months in that whereas
the former depends upon the subjective satisfaction of the detaining authority,
the latter has in express terms been made dependent on the existence of facts
and circumstances necessitating such continuance. This Court held in that
petition :
"It follows that where the exercise of
power is not conditioned on a mere opinion or satisfaction but on the existence
of a set of facts or circumstances that power can be exercised where they
exist. The authority in such a case is required to exercise the power in the
manner and within the limits authorised by the Legislature. The existence, of
such facts which is the determinant for the exercise of the power is
demonstrable".
The Court further observed :"Unlike Rule
30(1) (b) the power to continue the detention after review is not dependent on
the satisfaction of the Government. Rule 30A postulates that ordinarily
detention should not be for more than six months unless found necessary. It is
for that reason that under the Rules when the period of six months expires the
Government is enjoined upon to decide whether it should be continued or
cancelled. Though the legislature has made the Government the exclusive forum
for such a decision, its decision has to be founded on facts and circumstances
which make the continuation necessary in order to prevent the detenu acting in
a manner prejudicial to the matters set out therein. The substitution of
decision instead of satisfaction is a clear indication that the criterion for
continuing the detention is the existence of those facts and circumstances
which necessitate it. It is not unreasonable to think that the legislature
decided to confer power the exercise of which was made dependent upon the
subjective satisfaction at the initial stage but where continuation of
detention was concerned, it thought that there should be different considerations.
At that stage there would be ample time and opportunity for the Government to
scrutinise the ,case fully and ascertain whether facts and circumstances exist
demanding continuation and therefore deliberately used the word 'decide'
instead of the words 'is satisfied'. Therefore, where such circumstances do not
exist there would be no necessity for continuation and yet if the Government
decides to continue the detention, such a decision would be beyond the scope of
Rule 30A and would not be a decision within the meaning of or under 119 that
Rule. Cases may arise where circumstances exist leading to the authority's
satisfaction that a particular person should be detained but those
circumstances may not exist at the time when the review is made. In the latter
case it is impossible to say that the Government can still decide to continue
the detention nor is it possible to say that it is the Government's opinion or
satisfaction that such facts and circumstances exist which is the criterion.
The decision on a review has to be arrived at from the facts and circumstances
which actually subsisted at the time when the original order was made in the
light of subsequent developments and not merely those existing at the time when
the order was made. In such a case the decision can be challenged as one not
within the scope of or under the Rule and therefore unauthorised or as one
based on considerations irrelevant to the power".
The position resulting from this decision is
that the decision to continue detention has to be arrived at not subjectively
but on an objective standard, i.e. on a decision on materials relevant to the
purposes under Rule 30(1) (b) and Rule 30A(9) gathered by or placed before the
detaining authority which, according to that authority, necessitates
continuation. Though it is the detaining authority which has to decide and its
order is not subject to appeal or revision by a court of law such an order is
liable to a challenge where either such facts and circumstances do not exist or
where it is made on the basis of facts or circumstances not relevant or
extraneous to the said purposes.
On the contentions raised by the petitioner,
the question that falls for determination is whether the function entrusted by
Rule 30A(9) to the Government and its decision thereunder are judicial or
quasi-judicial. This question was left open in the earlier judgment in P. L.
Lakhanpal v. The Union of India and Another(1) as the petitioner had then not
raised it.
As to what is a quasi-judicial as against an
administrative or ministerial function, it is no longer necessary to go in any
detailed search for the principles governing the distinction between the two.
Lord Loreburn, L. C. in Board of Education v. Rice (2 ) stated,
"Comparatively recent statutes have extended, if they have not originated,
the practice of imposing upon departments or officers of State the duty of
deciding or determining the questions of various kinds. In the present
instance, as in many others, what comes for determination is sometimes a matter
to be settled by discretion, involving no law. It will, I suppose, usually be
of an administrative kind; but sometimes it will involve a matter of law (1)
[1966] Supp S.C.R. 209. (2) [1911] A.C. 182.
120 as well as a matter of fact, or even
depend upon a matter of law alone. In such cases the Board of Education will
have to ascertain the law and also to ascertain the facts. I do not add that in
doing either they must act in good faith and fairly listen to both sides, for
that is a duty lying upon every one who decides anything. But I do not think
that they are bound to treat such a question as though it were a trial ....
They can obtain information in any way they think best, always giving a fair
opportunity to those who are parties in the controversy for correcting or
contradicting any relevant statement prejudicial to their view". Similar
sentiments were also expressed by Lord Haldane in Local Government Board v.
Arlidge(1). The Lord Chancellor there stated, "When the duty of deciding
an appeal is imposed, those whose duty it is to decide it must act judicially.
They must deal with the question referred to
them without bias, and they must give to each of the parties the opportunity of
adequately presenting the case made. The decision must be come to in the spirit
and with the sense of responsibility of a tribunal whose duty it is to mete out
justice". The principles distinguishing a quasi-judicial function from one
which is ministerial were more precisely set out by Das, J. (as he then was) in
the Province of Bombay v. Kusaldas S. Advani(2). He observed (1) where is a
lis, there is prima facie in the absence of anything in the statute to the
contrary the duty of the authority to act judicially and the decision of the
authority is a quasijudicial act; and (2) even if there is no lis inter-parties
and the contest between the party proposing to do the act and the subject
opposing it, the final determination of the authority will yet be a
quasi-judicial act provided the authority is required by the statute to act
judicially. "In other words, while the presence of two parties besides the
deciding authority will prima facie and in the absence of any other factor
impose upon the authority the duty to act judicially, the absence of two such
parties is not decisive in taking the act of the authority out of the category
of quasi-judicial act if the authority is nevertheless required by the statute
to act judicially". These principles have since been acted upon by this
Court in subsequent decisions such as Nagendra Nath Bora, v. The Commissioner
of Hills Division ( 3) Radheshyam Khare v. The State of Madhya Pradesh (4),
Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport CorPoration(5)
and Shivji Nathubhi v.
The Union of India (6). In Board of High
School and Intermediate Education, U.P. v. Ghanshvam (7) the question again was
whether the power entrusted to the Examination Committee under s. 15 of U.P.
(1) [1915] A.C.120 at p.132. (2) [1950]
S.C.R. 621, 725.
(3) (1958] S.C.R. 1240. (4) [1959] S.C.R.
1440.
(5) [1959] Supp. 1 S.C.R. 319.(6) (1960] 2
S.C.R. 775.
(7) [1962] Supp. 3 S.C.R. 36.
121 Intermediate Education Act, 1921 and
Chapter VI, r. (1) of the Regulations made thereunder was a quasi-judicial
power.
Wanchoo, J., who spoke for the court said at
page 43 as follows :"Now it may be mentioned that the statute is not
likely to provide in so many words that the authority passing the order is
required to act judicially; that can only be inferred from the express
provisions of the statute in the first instance in each case and no one
circumstance alone will be determinative of the question whether the authority
set up by the statute has the duty to act judicially or not. The inference
whether the authority acting under a statute where it is silent has the duty to
act judicially will depend on the express provisions of the statute read along
with the nature of the rights affected, the manner of the disposal provided,
the objective criterion if any to be adopted, the effect of the decision on the
person affected and other indicate afforded by the statute".
The Court there held that it was obvious that
the Committee when it proceeded to decide matters covered by r. 1(1) will have
to depend upon materials placed before it and before it decided to award any
penalty it had to come to an objective determination on certain facts and this
was the only manner in which it could carry out the duties imposed on it. Even
though there was no lis in the present case in the sense that there were not
two contending parties before it the Committee should hear the examiner whose
lives might be seriously affected by its decision even subjecting them in some
cases to criminal prosecution on charges of impersonation, fraud and perjury.
Though, therefore, there was nothing express one way or other in the act or the
Regulation casting a duty on the Committee to act judicially, the manner of the
disposal and the serious effects of the decision of the Committee would lead to
the conclusion that a duty to act judicially was cast on the Committee and the
Committee when it acted under r. 1(1) was acting quasi-judicially and the
principles of natural justice would apply to its proceedings.
Let us now proceed to consider the nature of
the function of review and the decision thereon in the light of the principles
laid down in these decisions. There can hardly be any doubt that in a case of
the kind we have before us there must always occur a dilemma or a conflict
between the claims on the one hand of personal liberty of an individual and
these of national interests on the other. Nevertheless, it must be remembered
that in such cases, the only remedy that a person detained has lies in the
procedural safeguards that the legislature deliberately lays down. Where such
procedural safeguards have been fully and properly complied with, the Court
would have no power or would in any L4SupCI/67-9 122 event be reluctant, even
if it has, to interfere. That is because of the consideration that national interest
and security should have a prior claim than even the personal liberty of an
individual who has acted or is likely to act in a manner prejudicial to them.
In such cases, however, utmost care has to be taken to comply with such few
safeguards which the law justifying the loss of liberty provides. That the
impugned decision involves the right of personal liberty, a more cherished
right than that one cannot conceive in our democratic State is obvious. It is
equally obvious that the manner in which the question of continuation of
detention enjoined upon by Rule 30A(9) has to be determined is by applying the
objective standard as against the subjective opinion or the belief of the
detaining authority i.e. by weighing evidence brought before or collected by
such authority relevant to the purposes under Rule 30(1) (b) and Rule 30A(9)
and then coming to a decision whether the order of detention needs continuation
or not. How can such an authority come to its decision honestly and properly
unless it is certain that the materials before it are true and dependable. How
is that certainty to be derived unless the person concerned is given an
opportunity to correct or contradict such evidence either by explanation or
through other materials which he can place before the authority. Keeping in
mind the five factors laid down in the case of The Board of High School and
Intermediate Education U.P. (1), the conclusion that we must come to is that
the function entrusted to the authority under Rule 30A(9) as distinguished from
the power under Rule 30(1) (b) is quasi-judicial and the-decision which it has
to arrive at cannot be anything other than. a quasi-judicial decision.
Mr. Dhebar, however, relied on the judgment
of Shah, J. in Sadhu Singh v. Delhi Administration ( 2 ) and especially the
observations therein that "if the order of detention is purely executive
and not open to review by the court, a review of those very pircumstances on
which the order was made in the light of circumstances since the date of the order
cannot but be regarded as an executive order". The question is: Does it
follow that because the first order is purely executive, the subsequent order
is necessarily also executive? While making the subsequent order, the authority
is called upon to decide whether further detention is necessary for the
purposes set out in the Rules. That decision has to be arrived at, firstly, on
the assessment of the evidence placed before the authority and not on its
subjective satisfaction and secondly, in the light of the facts which existed
at the date of the original order and the facts and circumstances which have
occurred or developed since then. It is well-recognised that a function or
power which in its inception is purely ministerial may some(1) [1962] Supp. 3
S.C.R. 36.
(2) [1966] 1 S.C.R. 243.
123 times become quasi-judicial at a latter
or some intermediate stage during the course of its exercise. At the stage at
which it attains the nature of a quasi-judicial function, the authority
entrusted with that function has to comply with the rules of natural justice
and give an opportunity to the party concerned of representing his case. An
illustration can be found in R. Johnson & Co. (Builders) Ltd. v. Minister
of Health(1), where Lord Greene, M.R. at p. 401 of the Report points out that
the function entrusted to the Minister there was of such a composite character.
It started as an administrative function but at the second stage it was
quasi-judicial where he had to consider the objections of parties, that is, the
objectors and the local authority and then ended as an administrative function
when the Minister decided whether to confirm or not to confirm the report of
the local authority. Regarding the second stage, he characterised that as a
quasi-lis and the parties i.e. objectors and the local authority as
quasi-parties and said that while that stage was pending statements made by or
obtained through either of the quasi-parties would have to be disclosed to the
other quasi-party.
To say therefore that because a function is
in its inception executive in character, it retains the executive character
throughout would not, with respect, be correct. Besides, the function under
Rule 30(1)(b) and that under Rule 30A(9) is not one and the same. The former is
completed as soon as an order of detention is made; the latter is independent
of the former and is to be exercised after detention has -one on for a period
of six months. In our view, whereas the function under Rule 30(1) (b) is
executive, the one under Rule 30A(9) is quasi-judicial and therefore in
exercising it the rules of natural justice have to be complied with.
It is admitted that the petitioner was not
given any opportunity of representing his case or to correct or contradict the
evidence on which the Government was going to rely on and which it admittedly
relied on. But Mr. Dhebar's contention was that if the power of decision under
Rule 30A(9) were held to be quasi judicial in character a person detained would
be entitled to disclosure of the materials in possession of the Government and
on the basis of which the order would be made, that such disclosure would not
only be prejudicial to the very purposes of the Act and the Rules but also to
national interest and, therefore, the legislature could not have intended such
disclosure. The answer to 'his Contention is simple. In some cases, though such
cases would be few, such disclosure would perhaps be embarrassing and, we will
assume, detrimental to the larger interests of the country. But the proper
remedy against such a consequence is not to deny (1) [1947] 2 All R.395.
124 the elemental right of representing his
case to the person whose liberty is being deprived but by providing a rule
where under the authority in suitable cases can claim privilege against such
disclosure. Such a provision is in fact provided for under Art. 22 of the
Constitution under the Prevention of Detention Act. where does not appear to be
any reason why such a rule cannot be made under the Defence of India Act or the
Rules made there under.
It may be that in the present case the
Government had materials before it which might justify the petitioner's
detention. We do not know whether it had or not for the only thing that was
said in the counter-affidavit was that there were materials on the consideration
of which the Minister based his decision. If that be so, the proper thing to do
was to give a chance to the petitioner to explain them. This not having been
done the order of continuation of detention was illegal, it being in breach of
the principles of natural justice and has, therefore, to be quashed.
In this view, it is not necessary to deal
with the rest of the contentions raised by the petitioner. The petition is
allowed. The order dated December 2, 1966 is quashed and the petitioner is directed
to be set free forthwith.
Back
