Sambhu Nath Sarkar Vs. The State of
West Bengal & Ors [1973] INSC 86 (19 April 1973)
SHETTY, K.J. (J) SHETTY, K.J. (J) KHANNA,
HANS RAJ MUKHERJEA, B.K.
CHANDRACHUD, Y.V.
HEGDE, K.S.
RAY, A.N.
REDDY, P. JAGANMOHAN
CITATION: 1973 AIR 1425 1974 SCR (1) 1 1973
SCC (1) 856
CITATOR INFO:
R 1974 SC 432 (6) D 1974 SC 613 (43) RF 1974
SC1155 (2) RF 1974 SC1796 (2) R 1974 SC2151 (8,10,12,18) R 1974 SC2279 (2) R
1975 SC 550 (12) RF 1976 SC1207 (53,131,523) R 1978 SC 597 (9,40,54,55,131,195)
RF 1979 SC 478 (90) R 1982 SC 710 (71) MV 1982 SC1325 (80) R 1985 SC1416
(103,104) RF 1986 SC 555 (6) RF 1992 SC1701 (27)
ACT:
The Maintenance of Internal Security Act, (26
of 1971), s.17A-If violates Art. 14 and Art. 22(7) of the Constitution.
Constitution of India, 1950, Art. 22(4)(a)
and (b) of Art.22(7)-Scope of.
Practice-Scope of Supreme Court's Power to
review its earlier decisions.
HEADNOTE:
The Maintenance of Internal Security Act,
1971, was passed on July 2, 1971. On December 3, 1971, a Proclamation of
Emergency was issued and on the next day. the Defence of India Act. 1971, was
enacted. Section 6 of the Defence of India Act introduced various amendments
and a new section, s. 17A. in the Maintenance of Internal Security Act.
Section 17A effectuated 3 main changes: (a)
It overrides, by its non-obstante clause, the other provisions of the Act;
(b) a person may be detained in a class or
classes of cam or under the circumstances set out in 9. 17A(1) (a) and (b)namely
on the ground of prejudicial acts in relation to (i) defence of India,
relations with foreign powers and security of India, and (ii) security of the
State and maintenance of public order without obtaining the opinion of an
Advisory Board for a period longer than 3 months. but not exceeding two years
from the date of detention; and (c) the maximum period of detention of such a
person can be 3 years or until the expiry of the Defence of India Act,
whichever is later.
These changes were brought about by
Parliament exercising the power contained in Art. 22(4)(b), (7) (a) and (b), in
respect of all the heads under Entries 9 and 3 of Lists I and III of the VII
Schedule to the Constitution, except the one with respect to maintenance of
essential supplies and services.
The petitioner was arrested on January 29,
1972, under a.3(1) and (2) of the Maintenance of Internal Security Act, and on
April 15, 1972,the State Government, after perusing the report of the Advisory
Board, confirmed the order of detention under s. 12(1) and directed the
detention to continue for 3 years from the date of detention.
In a petition under Art. 32,
HELD : The petitioner should be released from
his detention forthwith.
(1) (a) There is no question of
discrimination or.
violation of Art. 14 as a result of any such
discrimination.
By the use of the words 'may be detained in
the first part of s. 17A, an unguided discretion has not been conferred on the
detaining authority whether to take action under the more drastic provisions of
s. 17A or under s. 3(1) read with as. 10 to 13. [10E] (i) The opening words in
a. 10 'save as otherwise expressly provided in this Act', mean that s. 10 would
apply only to cases not expressly provided for In the Act, that is it would not
apply to cases falling under ss. 17 and 17A. [10B] (ii) The words 'may be
detained' in s. 17A(1) go with the words which follow them, namely, 'without
obtaining the opinion of the Advisory Board' and 'in any of the following
classes of cases or under any of the following circumstances . . ..". and
hence. are words enabling the authority to detain in certain cases and are not
words giving a choice to the authority to apply s. 17A or not. [10C-D] (b) Even
if the operation of ss. 17A and 10 side by side were to result in any
difference in the working of the Act.
that difference would not amount to any
discrimination, by reason of the provision in s. 17A(2) to the effect that in
the case of a person to whom s. 17A(1) applies, s. 10 shall be read subject to
the modifications set out therein. [10DE] L944Sup.CI/74 2 (2) Article 22(4)(a)
lays down a rule to which Art.
22(4)(b) read with Art. 22(7)(a) is an
exception. In that view, cl. (7)(a) must be construed as a restriction on
Parliament's power of making preventive detention laws in the sense that it can
depart from the rule laid down in cl.(4)(a) and dispense with reference of cases
to an Advisory Board only by a law which prescribes both the circumstances
under which and the class or classes of cases in which, a person may be
detained for a period longer than 3 months without obtaining the opinion of an
Advisory Board in accordance with cl. (4) (a). Since s. 17A has failed to
comply with the requirement of cl. (7)(a). it has to be declared bad as being
inconsistent with that clause. [23F-H] (a) Parliament has no alternative power
either to pass a law providing for it longer period of detention than 3 months
with the intercession of an Advisory Board or to enact a law under Art. 22 (4)
(b) read with Art. 22 (7) (a) providing also for a longer detention. but
without the intercession of such a Board, for, if such a theory were accepted,
it would mean that : (1) Art. 22 (4) (a) would be totally nullified by Art.
22(4)(b) read with Art. 22(7)(a), and (ii) whereas State laws providing longer
detention would require the intercession of an Advisory Board, such laws passed
by Parliament would not. Moreover, the construction, that cl. (4)(b) read with
cl. (7)(h) lays down an exception to cl. (4)(a), harmonises the clauses.
Therefore, the theory of independent or alternative power of Parliament cannot
be accepted. [18E-H; 19C] (b) (1) An analysis of the 2 clauses, cls. (4) and
(7) of Art. 22 shows : (A) that ordinarily, detention provided by a preventive
detention law should not be for a period longer than 3 months; (B) that if
however such a law does provide for a longer period than 3 months, it must
provide for the intercession of an Advisory Board; and (C) that situations may
arise when in certain classes of cases Parliament alone should be empowered to
enact a law which provides for a longer detention even without the intercession
of an Advisory Board. [19A-B] (ii) The law under cl. 7 (a) would be a drastic
law, as compared to the one to which cl. (4) (a) would apply, and the
presumption would be that such a drastic law would apply to exceptional
circumstances and activities expressly and in precise terms described.
Circumstances would ordinarily mean situation or events erroneous to the
activities of a concerned person or a group of persons, such as riots etc.,
which might by their pre-existence accentuate the impact of such activities
affecting the security of the country or a part of it or the public order.
Class or classes of cases, on the other hand, relate to a group or groups of
individuals, who, by the nature of their activities fall under one particular
group or groups by their common or similar objective or objectives. [21B-C, E]
(iii) The entries 9 in List I and 3 in List III of the VII Schedule lay down
the topics in respect of which legislation can be made. They are intended to
delineate the bounds within which legislatures can pass detention laws.
The purpose of these entries and of Art.
22(7)(a) are distinct. The purpose of Art. 22 (7) (a) is to distinguish the
ordinary from the exceptional to which only the salutary safeguards provided by
cl. (4)(a) would not apply. [21C-E] (iv) Therefore, mere repetition of the
subjects or topics of legislation from the entries would not mean prescribing
either the circumstances or the classes of cases to which only. as against the
rest of the individuals and their activities, the safeguard of intercession of
an independent body would not apply. If enumeration of the heads in the entries
were to mean compliance with prescribing of circumstances and classes of cases.
Parliament would., in such a law, be dealing with all situations and all
classes of cases from the lowest to the most extraordinary or abnormal and not
with some only requiring a treatment different from that envisaged by cl. (4)
(a); and in such a case, 61. (4) (a) would again be rendered nugatory, for,
Parliament can, by enumerating verbatim the heads or subjects set out in the
entries, do away with the requirement of cl. (4) (a). [20B-F; 21 E-H] (v) The
meaning of the word 'and' in cl. (7) (a) must be held to have its ordinary
conjunctive sense. The context in the clause requiring Parliament to prescribe
both the circumstances and the classes of cases in which only consideration by
the Board can be dispensed with. Hence, cl, (7) (a) envisages that Parliament
should apply its mind and prescribe specific situations and types of cases which
require a drastic law dispensing with the intervention of an Advisory Board.
[22A-B] 3 (c) The classification of prejudicial activities set out in
Regulation 18B of the British Defence of the Realm Regulations, 1939. in rr.
34(6) and 36(6) of the Defence of India Rules, 1939, and in a. 3(2) of the W.
Bengal (Prevention of Violent Activities) Act, 1970, show, that there is no
practical difficulty in prescribing specific circumstances under which and the
classes of cases which need dispensing with the intercession of an Advisory
Board.
[23F] (3) This Court would review its earlier
decisions if it is satisfied of its error or of the baneful effect such a
decision would have on the general interest of the public or if it is
inconsistence it with the legal philosophy of our Constitution and in
constitutional matters, this Court would do so more readily than in other
branches, of law as perpetuation of an error would be harmful to public
interest Nevertheless, this Court will have to bear in mind the accepted rule that
earlier decisions are not to be upset except upon a clear compulsion especially
when the legislature has acted upon them as perhaps Parliament did, while
enacting the impugned s. 17A. [16A-D] Majority view on the construction of Art.
22(4)(b) and (7)(a) in Gopalan v. Madras [1950] S.C.R. 88, over ruled. [230-H]
The Bengal Immunity Co. Ltd. v. Bihar, [1955] 2 S.C.R. 603 and Legal
Remembrancer, State, of West Bengal v. The Corporation of Calcutta, [1967] 2
S.C.R. 176, followed.
[The following two questions were left open :
((1) Since the major premise in the majority decision in Gopalan that Art.
22 was a self-contained code and therefore
the provisions of a law made under that Article would not have to be considered
in the light of the provisions of Art. 19, was disapproved in Cooper T. Union
of India, [1970] 3 S.C.R.
530, as. 3 and 8 to 13 of the Maintenance of
Internal Security Act, must be declared void as imposing unreasonable
restrictions; and (2) the maximum period of detention prescribed by the amended
s. 13 and by s. 17A(2)(d) did not satisfy Art. 22(7)(b), since the period fixed
by Parliament therein is 3 years or until the expiry of the Defence of India
Act whichever is later, which was an uncertain event.] [24A-E]
ORIGINAL, JURISDICTION : Writ Petition No.
266 of 1972.
(Petition under Art. 32 of the Constitution
of India for issue of writ it the nature of habeas corpus), Naranarayan Gooptu,
Dilip Sinha, Pulak Ranjan Mandal And Rathin Das, for the petitioner.
Niren De, Attorney-General of India, D. N.
Mukherjee and G.S. Chatterjee, for the respondent.
Niren De, Attorney-General of India, B. Sen
and S. P. Nayar, for Attorney General of India R. K. Garg and S. C. Agarwala,
for Intervener Nos. 1 & 4, R. K. Garg and K. R. Nambiar, for Intervener No.
2 Prodyot Kumar Chakravarthy, for Intervener No. 3 The Judgment of the Court
was delivered by
SHELAT, ACTING C.J., At all material times
the petitioner
was an employee of the Government of West
Bengal in the Collectorate of Hooghly District. He was arrested on January 29,
1972 pursuant to the order of detention dated January 25, 1972 passed by the
District Magistrate, Hooghly under s. 3(2) read with S. 3(1) of the Maintenance
of Internal Security Act, 26 of 1971. The said order was passed "with a
view to preventing him from acting in any manner prejudicial to the maintenance
of public order". He was served with 4 grounds of detention on that very
day. The said grounds of detention were in connection with certain incidents
alleged to have taken place on April 25, 1971, September 14, 1971, October 12,
1971 and January 19, 1972, as set out therein.
Before the said order was issued, the
petitioner and six others, also Government employees in Hooghly Collectorate,
were prosecuted for their alleged parts in the first two incidents on the basis
of the first information report dated September 14, 1971 under s. 143/506 of
the Penal Code. On March 29, 1972, they were discharged by the Magistrate on a
final report of the police dated March 10, 1972. Purusant to the said order of
detention, the petitioner was detain and is still in Hooghly jail.
The mother of the petitioner thereafter filed
an application No. 318 of 1972 in the High Court of Calcutta under s. 491 of
the Code of Criminal Procedure. In that application the petitioner's detention
was challenged only on two grounds, namely, vagueness of the grounds of
detention and their irrelevance. On May 29, 1972, the High Court dismissed the
said application. The present petition is more comprehensive and for the first
time challenges the validity of several provisions of the Act.
The record before us shows that all the steps
required under the Act have been taken and complied with in the time and manner
prescribed by the Act. No objection, therefore, to the petitioner's detention
on that ground can be validly taken. The petitioner's case was referred to the
Advisory Board constituted under the Act, which reported that there was
sufficient cause for his detention. On April 15, 1972, the State Government, on
receipt of the said report, confirmed the order of detention under s. 12(1) and
directed that detention to continue for three years from the date of detention.
The said order of confirmation was duly communicated to the detenu. The petitioner
thereafter made his representation to the State Government on August 10, 1972,
that is to say, several months after reference of his case to the Board and the
said order of confirmation. The said representation was not considered by the
State Government as by that time this writ petition had already been filed and
was pending before this Court.
The order of detention has been challenged in
the petition on the following grounds:
(1) that the grounds of detention were vague;
(2) that there was no nexus between the
grounds and maintenance of public order;
(3) that they were mechanically framed
without the detaining authority applying his mind;
(4) that the order was mala fide and passed
for collateral purpose, namely, to victimise the active members of the State
Coordination Committee of which the petitioner was one;
(5) that s. 6(6) (d) and (e) of the Defence
of India Act, 42 of 1971 increasing the detention period from 12 months to 3
years by the amendment of s. 13 of the Act has 5 treated equally citizens of
India and foreigners and has thereby violated Art. 14;
(6) that the said order of confirmation
providing three years detention was ultra vires Art. 22.
The District Magistrate by his
counter-affidavit denied all the grounds of challenge to the validity of the
said order.
On October 24, 1972, the petitioner applied
for urging additional grounds of challenge and on liberty being granted to
amend, the petition was amended. Stated briefly, the additional grounds
challenged the validity of ss. 3, 5, 8, 11, 12 and 13 of the Act on the grounds
of their being unreasonable restrictions and as violating Arts. 14, 19, 21 and
22 by reason of those provisions failing to provide an impartial authority to
consider a detenu's representation.
and the means to challenge the materials on
which the order is made, the materials placed by the authority before the
advisory board and the report of the board based on such materials before
government confirmed the detention.
The hearing of the case started before the
Constitution Bench on November 17, 1972 and was heard on that day and again on
November 21, 1972 and December 1, 1972. It seems that a contention was then
raised as to the validity of s.
17A of the Act which provides for a period of
detention for 21 months without consulting an advisory board, which question,
the Bench thought, required reconsideration of the decision in Gopalan v.
Madras.(1) The Constitution Bench thought, therefore, that the case should be
referred to a larger bench, and that is how this case has come up before us for
disposal.
The Act was passed on July 2, 1971. Its long
title shows that it was passed to provide for detention for the purpose of
maintenance of internal security and matters connected therewith. Sec. 3(1)(a)
empowers the Central and the State Governments to make an order detaining a
person, if satisfied with respect to such person that it is necessary to do so
with a view to preventing him from acting in any manner prejudicial to : (i)
the defence of India. the relations of India with foreign powers, the security
of India, or (ii) the security of the State, or the maintenance of public
order, or (iii) the maintenance of supplies and services essential to the
community. Sub-s. (2) authorises the exercise of the power of detention under
sub-s. (1)(a) by certain officers named therein, inter alia, district
magistrates, with respect to matters set out in s. 3(1) (a) (ii) and (iii).
Sec. 5 confers power on the appropriate government to remove a person detained
under s. 3 from one place of detention to another Whether within or outside the
State. Sec. 6 provides that such an order shall not be invalid on the ground
that the concerned person is detained in a jail outside the jurisdiction of
that Government, or the office making the order. Sec. 8 Provides for the
communication of grounds for detention.to the detenu ordinarily within five'
days, and in exceptional cases within 15 days (1) [1950] S.C.R. 88.
6 from the date of detention. Sec. 9 provides
for the constitution of advisory boards. Sec. 10 provides that, save as
otherwise provided for in the Act, the appropriate Government shall within 30
days from the date of detention refer every case to the advisory board. Under
S. 11, the advisory board has to give its report to the Government within ten weeks
from the date of detention. Sub sec. (4) of s. 11 disentities the detenu to
appear by any legal practitioner before the board and maker,, the proceedings
before and the opinion of the board confidential. Sec. 12 provides that if the
board is of opinion that there is sufficient reason for the detention, the
Government may confirm the order and continue such detention for such period as
status fit. in case the opinion is that there is no such sufficient cause, the
Government has to revoke the detention order. Sec. 13 provides that the maximum
period of detention shall be 12 months from the date of detention.
Sec. 17 provides that a foreigner, in respect
of whom a detention order is passed, may be detained without obtaining the
opinion of the advisory board for a longer period than three months, but not
exceeding two years in any of the classes of cases I or under any of the
circumstances thereinafter set out in sub-cls. (a) to (d) of sub-s. (1),
namely, where a foreigner enters or attempts to enter India or is found with
arms, ammunition or explosives, or Where a foreigner enters or attempts to
enter a notified area or is found therein in breach of s. 3 of the Criminal law
Amendment Act, 1961, or where such a foreigner enters or attempts to enter in
an area adjoining the borders of India specified under s. 139 of the Border
Security Forces, Act, 1968 without a travel document, or where the Central
Government has reason to believe that such a foreigner commits or is likely to
commit an offence under the Official Secrets Act, 1923. Sec. 17 thus lays down
classes of cases in or circumstances under which foreigners can be, detained
for a period longer than three months without reference to an advisory board.
Art. 19(1) guarantees the rights of freedom
of speech and expression, of assembly, to form associations and unions to move
freely throughout India, to reside and settle in any part of India and to
practise any profession, occupation, trade or business, subject to reasonable
restrictions which may be imposed by law as provided by cls. (2) to (6)
thereof. Art. 21 guarantees protection of life and liberty, the deprivation of
which is not permissible, except in accordance with procedure established by
law. Art. 22, by its cls. (1) and (2) guarantees that no person can be detained
in custody without his being informed, as soon as may be, of the grounds for
his arrest and without being furnished with an opportunity to consult and be
defended by a legal practitioner of his choice, and his being produced before
the nearest magistrate within 24 hours from his arrest. No such person can be
detained for more than that period without the authority of a magistrate. Cl.
(3) of Art. 22, however, makes cls. (1) and (2) inapplicable to a person
arrested and detained under a law providing for preventive detention. But cl.
(4) provides that no law providingfor preventive detention shall authorise
detention for a period longerthan three months unless (a) an advisory board has
reported before the expiration of three months that there is sufficient cause
for 'suchdetention, or (b) such person is detained in accordance with a law
madeby Parliament under cl. 7(a) and (b).
7 Cl. (7) provides that Parliament may by law
prescribe (a) the circumstances under which, and the class or classes of cases
in which, a person may be detained for a period longer than three months under
any law providing for preventive detention without obtaining the opinion of an
advisory board in accordance with the provisions of sub-cl. (a) of cl. (4);
(b) the maximum period for which any person
may in any class or classes of cases be detained under any law providing for
preventive detention. Parliament under entry 9 of List I of the Seventh
Schedule can pass such a law for reasons connected with defence, foreign relations
or the security of India, and concurrently with State legislatures under entry
3, List III for reasons connected with the security of the State, the
maintenance of public order or the maintenance of supplies and services
essential to the community.
On December 3, 1971, the President issued a
proclamation of emergency under Art. 352 of the Constitution. On December 4,
1971, Parliament enacted the Defence of India Act, 42 of 1971. The Act was
passed in view of the grave emergency which then existed as proclaimed by the
President, and to provide for special measures to ensure public safety and
interest, the defence of India and civil defence, for trial of certain offences
and for matters connected therewith.
Sec. 2(3) of the Act provided that it would
remain in force during the period of operation of the proclamation of emergency
and for six months thereafter. By sec. 6, the Act introduced amendments in
several Acts, one amongst them being the Maintenance of Internal Security Act,
1971. Cl.
(d) of sub-s. (6) of s. 6 amended s. 13 of
the Act by adding after the words therein "from the date of
detention", the words and figures "or until the expiry of the Defence
ofIndia Act, 1971, whichever is later". By cl. (e) of sub-s.
(6) of s. 6, a new section, s. 17A was
inserted in the Act.
The new section reads as follows :
"17A. (1) Notwithstanding anything
contained in the foregoing provisions of this Act, during the period of
operation of the Proclamation of Emergency issued on the 3rd day of December,
1971, any person (including a foreigner) in respect of whom an order of
detention has been made under this Act, may be detained without obtaining the
opinion of the Advisory Board for a period longer than three months, but not
exceeding two years from the date of his detention in any of the following
classes of cases or under any of the following circumstances, namely:(a) where
such person had been detained with a view to preventing him from acting in any
manner prejudicial to the defence of India, relations of India with foreign
powers or the security of India; or (b) where such person had been, detained
with a view to preventing him from acting in any manner prejudicial to the
security of the State or the maintenance of public order.
(2)In the case of any person to whom subsection
(1) applies, sections 10 to 13 shall have effect subject to the following
modifications, namely, 8 (a) in section 10, for the words "shall, within
thirty days", the words "may, at any time prior to but in no case
later than three months before the expiration of two years" shall be
substituted;
(b) in section 11,(i) in sub-section (1) for
the words "from the date of detention", the words "from the date
on which reference is made to it" shall be substituted;
(ii)in sub-section (2), for the words
"the detention of the person concerned", the words "the
continued detention of the person concerned" shall be substituted;
(c) in section 12. for the words "for
the detention", in both the places where they occur, the words "for
the continued detention' shall be substituted;
(d) in section 13, for the words "twelve
months", the words "three years" shall be substituted." The
new section, s. 17A effectuates three main changes : (1) by its non-obsante
clause overrides the other provisions of the Act, (2) a person may be detained
in a class or classes of cases or under the circumstances set out in sub-cls.
(a) and (b) of its sub-s. (1) without obtaining the opinion of an advisory board
for a period longer than three months, but not exceeding two years from the
date of detention, that is to say, no opinion of an advisory board need now be
obtained for 21 months from the date of detention, the first three months of
the detention being permissible without such opinion even before the insertion
of s. 17A; and (3) the maximum period of detention of such a person can be
three years or until the expiry of the Defence of India Act, 1971 whichever is
later. These changes have been brought about by Parliament exercising power
contained in cl. (4) (b) read with cl. 7(a) and (b) of Art. 22. The power is
exercised in respect of classes of cases and circumstances relating to all the
heads under entries 9 and 3 of Lists I and III of the Seventh Schedule, except
one, viz., maintenance of essential supplies and services, in respect of which
Parliament has the power to pass preventive detention laws.
Counsel for the petitioner challenged the
validity of the provisions of the Act and the detention order mainly on the
following grounds :
(1) that the amendments introduced in the Act
by s. 6(6) (d) and (e) are violative of Ut. 22(4), (5) and (7);
(2) that s. 10, both prior to and after its
amendment, contravenes Art. 22(4);
(3) that sec. 6 (6) (d) and (e), of the
Defence of India Act contravenes Art. 14;
(4) that the maximum period prescribed by the
amendment to s. 13 by, s. 6 (6) (d) of the Defence of India Act and by , the
new s.
1.7A(2) (d) is ultra vires the powers of
Parliament since it amounts to punitive and not, preventive detention;
9 (5) that secs. 3, 5, 8, 11 and 12 of the
Act are violative of Arts. 14, 19 and 21, on the ground that they are
unreasonable restrictions and are not saved by any of the sub-clauses of Art.
19(1); and (6) that the amendments brought about in them by s. 6(6) (d) and (e)
of the Defence of India Act cannot breathe life in them as they were non est,
by reason only of the subsequent proclamation of emergency.
These contentions fall under two parts, (1)
relating to the provisions as they stood before the amendments, and (2)
relating to the amendments introduced in the Act by the Defence of India Act,
s. 6 (6) (d) and (e). As regards the first part, the arguments were that (i)the
Act was invalid as the restrictions placed thereby on the fundamental rights
guaranteed by Arts. 14, 19(1) (a) to (d) and (g), 21 and 22 were not saved by
sub-cls. (2), (3), (4) and (6) of Art. 19(1);
(ii) s. 3 of the Act in so far as it empowers
the detention of a person on subjective satisfaction, and not on any objective
assessment of the truth of allegations made against him, imposes an
unreasonable restriction on his several rights guaranteed by Art. 19(1);
(iii)s. 8, which obliges the authority to
furnish to the detenu the grounds of detention and confers on him the right to
make a representation does not provide for its consideration by an independent
and impartial body, is bad;
(iv) s. 12 is bad as government can, contrary
to principles of natural justice, confirm detention for a period longer than three
months on the strength of an advisory board's report without giving any
opportunity to the detenu to know the contents of such a report and to
controvert it;
(v) the provisions of the Act are
discriminatory in so far as they drastically curtail the liberty of a detenu
without his having safeguards available to a person proceeded against under ss.
107 to 110 of the Code of Criminal Procedure.
As stated above, s. 17A authorises detention
on the ground of prejudicial acts in relation to (a) defence of India,
relations with foreign powers and security of India, and, (b) security of the
State and maintenance of public order only. Counsel argued that by the use of
the words "may be detained" in the first part of the section an
unguided discretion has been conferred on the detaining authority whether to
take action under the more drastic provisions of this section or under s. 3(1)
read with ss. 10 to 13, even though the activities in respect of which action
is taken are in both the cases of the kind set out in (a) and (b) above. in
support of this argument, counsel relied on the decisions of this Court in
Northern India Caterers Private Ltd.
10 v.Punjab, (1) State of M.P., v. Thakur
Bharat Singh, (2) S. G. falsinghani v. Union of India,(3) Satwant Singh Sawhney
v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi.
(4) The contention, however, is not borne out by the provisions of W. 10 and
17A(1) and (2). In the first place, s. 10 opens with the words save as
otherwise expressly provide in this Act". These words mean that the
section would apply only to cases not expressly provided for in the Act, that
is to say that would not apply to under ss. 17 and 17A which deal cases
"otherwise expressly provided" in the Act. In the second place, the
words "may be detained" in s. 17A(1) go with the words which follow
them, namely, "without obtaining the opinion of the advisory board"
and in "any of the following classes of cases or under any of the
following circumstances The words "may be detained", no doubt, enable
the authority to detain a person without obtaining the opinion of an advisory
board for a period 'longer than three months, but not exceeding two years in
the cam% therein set out. The words "may be detained" thus are words
enabling ,the authority to detain without a board's opinion for the period
there provided for, but are not words giving a choice to the authority to apply
s. 17A(a) or not. Even if the operation of s. 17A and s. 10 side by side were
to result in any difference in the working of the Act, that difference would
not seem to amount to any discrimination by reason of the provision in s.
17A(2) to the effect that in the case of a person to whom sub-s.(1) applies s.
10 shall be read subject to the modification, namely, that for the words
"within thirty days", the words "at any time prior to but in no
case later than three months before the expiration of two years" shall be
substituted. In this view, there is no question of discrimination or violation
of Art. 14 as a result of any such discrimination. This conclusion is clearly
borne out by the combined effect of the non-obstante clause in the commencement
of s. 17A(1) and the qualifying words "save as otherwise provided in this
Act" in s. 10.
But the more important challenge to the
validity of s. 17A was as regards its incompatibility with and the noncompliance
of the requirements of Art. 22(7). The argument was twofold: (1) that on a
proper reading of Art. 22(4), (5) and (7), cl. (7) was an exception to the rule
laid down in cl. (4), and (2) that consequent upon such a construction of cl.
(7), that is, as an exception to cl. (4), that clause did not generally empower
Parliament to enact a law, on the subjects set out in entries 9 and 3 of Lists
I and III respectively, without the safeguard provided by cl. (4), namely, of
obtaining an opinion of an impartial body, like the advisory board' On the
contrary, that clause authorises Parliament to enact a detention law in
exceptional class or classes of cases and in exceptional circumstances
specifically prescribed by such a law. The contention was that s. 17A did not
comply with such a requirement of cl.
(7) inasmuch as enumeration of the subjects
or heads in s.
17A, except that with respect to maintenance
of essential supplies and services, would not mean prescribing class or classes
of cases and circumstances as provided by cl. (7).
(1) [1967] 3 S. C. R. 399. (2) [1967] 2 S. C.
R. 454.
(3) [1967] 2 S. C. R. 703. (4) [1967] 3 S. C.
R. 525.
11 Three questions would emerge from this
contention: (1) whether cl. (7) is an exception to the rule laid down in cl.
(4); (2) whether Parliaments power to enact a
detention law is limited by the requirements laid down in cl. (7); and (3)
whether setting out verbatim the heads or subjects or some of them upon which
Parliament can enact such a law would mean compliance of the requirements of
cl. (7).
These very questions were considered in one
form or another in Gopalan v. Madras(1) in connection with s. 12 of the Preventive
Detention Act, 1950. The validity of that section was impugned on the ground of
its not having complied with the requirements laid down in cl. (7), firstly,
because the section merely enumerated the heads or subjects, except one,
namely, maintenance of essential supplies and serves upon which under entries 9
and 3 of Lists I and III respectively Parliament could enact a detention law
and not the class or classes of cases and the circumstances in which detention,
without the board's opinion could be ordered , and secondly, because it failed
to comply with both the requirements, the word 'and' in that connection being
used conjunctively and not disjunctively.
Sec. 3(1) of that Act authorised the Central
or the State Government to detain a person, (i) if it was satisfied that his
detention was necessary to preventing him from acting prejudicially to (a) to
the defence of India, her relations with foreign powers, the security of India;
or (b) the security of the State or the maintenance of public order, or (c) the
maintenance of supplies and services essential to the community, or (ii) with
reference to a foreigner to regulate his continued presence in India, or to
make arrangements for his expulsion from India. See. 9 required the appropriate
Government to place the case of the person detained under s. 3(1) before the
advisory board within six weeks from the date of detention only in cases (1)
where the order was made on apprehension that the detenu was likely to act prejudicially
to the maintenance of essential supplies and services, and (2) where it was
made against a foreigner under the two heads stated above. S. 12 of the Act
provided that a person could be detained without obtaining the board's opinion
for a period longer than three month-,. but not exceeding one year from the
date of the detention in the following classes of cases, or in any of the
following circumstances, namely, where such a person has been detained with a
view to preventing him from acting prejudicially to (a) the defence of India,
relations with foreign powers, the security of India, and (b) the security of
the State or the maintenance of public order. S. 12(2), however, provided for a
review by the appropriate Government in consultation with a person who is or
has been or is qualified to be appointed a judge of a High Court. Such a
provision for a review and the intercession of an independent and impartial
person reduced to a certain extent the rigour of s. 12(1).
No such review, which would be of a quasi
judicial nature, [(see Lakhanpal v. Union of India(2)] is provided for in the
impugned section 17A.
The majority Court. consisting of Kania.
C.J., and Patanjali Sastri, Mukherjea and Das, JJ., (as they all then were)
rejected both the contentions, holding, firstly that the word 'and' meant in
the context 'or, which meant that it was enough if Parliament, under Art.
(1) [1950] S. C. R. 88.
(2) [1967] 1 S. C. R. 433.
12 22(7) (a), prescribed either the
circumstances or the of cases in which a person might be detained for a period
longer than three months without reference to an advisory board, and secondly,
that matters referred to in s. 12 constituted sufficient description of
circumstances or classes of cases so as to comply with the requirements of Art.
22(7)(a), and that therefore, the section was not open to any constitutional.
challenge.
The minority Court consisting of Fazl Ali and
Mahajan, JJ., (as the latter then was) accepted the' petitioner's contention in
both its aspects and held that the word 'and' meant the conjunctive and not the
disjunctive, and that therefore, the impugned provision had to specify both the
classes of cases and the circumstances in which detention for a longer period
could be directed without a board's opinion. They also held that the
expressions "class or classes of cases" and "the
circumstances" would not mean merely the heads or the subjects on which a
detention law was permissible under cl. (7)(a).
Kania, C.J., held that the word 'and' in cl.
(7) (a) meant that the power of preventive detention beyond three months may be
exercised, either for the circumstances in which or the class or classes of
cases in which a person was suspected to be doing the objectional things
mentioned in s.12. According to him, "the use of the word 'which' twice in
the firstart of the sub-clause read with a comma put after each shows that the
legislature wanted these to be read as disjunctive and not
conjunctive".(126-127) Patanjali Sastri, J., (as he then was) also
construed the word 'and' as meaning that Parliament may prescribe either the
circumstances or the classes of cases or both and held that s. 12 provided
both, for, to say that persons likely to act prejudicially to the defence of
India may be detained beyond three months was at once to prescribe a class of
persons who and the circumstances under which persons could be detained for the
longer period. (216) Mukherjea, J., (as he then was) thought that c1. (7)(a)
laid down an enabling provision and Parliament, if it so chose, could pass a
law in terms of the same. "where an optional power is conferred on
certain..
authority to perform two separate acts,
ordinarily it would not be obligatory to perform both; it may do either if it
so likes". (282) Das, J., (as he then was) also felt that Parliament
"was not obliged under el. (7) to prescribe both circumstances and
classes, and in any case has in fact, and substance prescribed both,
particularly as in some cases circumstances and classes of cases may
conceivably coalesce." (330-331) The approach, on the other hand, of the
minority judges was that cl. (4) of Art. 22 laid down a general rule and cl.
(7) war, an exception thereto. Read in that light, cl. (7) meant-that
Parliament could dispense with an advisory board. but that if it did, it, 'had
to prescribe the circumstance and the classes of cases, and therefore, the word
'and' in that sub-clause could not be read as 'oil. (175-176; and 235) As
regards the expression "the circumstances under which and the class or
classes of cases in which" a Person could be detained for a longer period
than three months, Kania, C.J., observed that circumstances ordinarily meant
events or situations extraneous to I the actions of the individual concerned,
while a class of cases meant determinable groups based on the actions of the
individuals with a common aim or 13 idea. He, however, held that the assumption
that entry 9 in List I and entry 3 in List II were incapable of being
considered as circumstances or classes of cases was untenable, and therefore,
there was no reason why the words of those entries could not be used in s. 12
so as to comply with the requirement of cl. (7)(a). (127-128) Patanjali Sastri,
J., thought that cls. (4) and (7) were independent clauses and could not be
correlated so as to characterise cl. (7) as a proviso or exception to cl. (4),
and that to read them as a rule and an exception was against their language and
structure. He also thought that cl: (7) dealt with preventive detention, a
purely protectional measure, which must necessarily proceed in all cases on
suspicion or anticipation as. distinct from proof, [Rex v.
Halliday(1)]and that in such laws it would be
impossible to maintain the various circumstances to enumerate various classes
of cases exhaustively for which a person should be detained for more than three
months except in broad outline.
(214) According to him sufficient guidance
could be given by indicating the general nature of the prejudicial activities
which a person is likely to indulge in. He observed that he failed to see why
enumeration of five out of the six subjects on which a detent was permissible
under the two entries could not be said to comply with the requirements of cl.
(7)(a). "I fail to see", he said, " why this could not be
regarded as a broad classification of cases or a broad discretion of
circumstances where Parliament considers longer detention be justifiable".
(215) While Kania, C.J., and Patanjali Sastri, J., were thus satisfied Got the
requirement of cl. (7)(a) would be complied with by the mom enumeration of the
subjects in the entries or some of them, Das J. and Mukherjea J, do not appear
to express their satisfaction in so forthright a language. This is-clear from
the following passages:
"It is true that circumstances
ordinarily relate to extraneous things, like riots, commotion, political or
communal or some sort of abnormal situation and it is said that the framers of
the Constitution had in mind some such situation when the advisory board might
be done away, with. it is also,urged that they had in mind that the more
dangerous t ypes of detenus should be denied the privileg e of the advisory
board. I am free to confess that prescription of specific circumstances or a
more rigid and definite of classes would have been better and more desirable.
But that is crying for the ideal.
The Constitution has 'not in terms put any
such limitation-(per Das, J., at 331-332) "I am extremely doubtful",
said Mukherjea, T., "whether the classification of cases made by
Parliament in section 12 of the Act really fulfils the object which the
Constitution had in view. The basis of classification has been the apprehended
acts of the persons detained described with reference to the lists as said
above. Five Out of the six heads have been taken out and labelled as classes of
cases to which the protection of clause (4) (a) of the article would not be
available. It is against common sense that all forms of (1)[1917] A.C. 260, at
275.
14 activities connected with these five items
are equally dangerous and merit the same drastic treatment. The descriptions
are very general and there may be acts of various degrees of intensity and
danger under each one of these.
heads." (281) Although he thought that
s.12 was not framed-with due regard to the object which the Constitution had in
view. he held that he was unable to say that the section was invalid as being
ultra vires the Constitution.
FazlAli J., on the other hand, held (1) that
cl. (4) laid down a general rule and cl.. (7) engrafted an exception to it, and
that it was never intended that Parliament could treat the normal as the
abnormal, or the rule as an exception; (2) that the circumstances to be
prescribed must be special and extraordinary and the class or classes of cases
%Mt be of the same nature. The Constitution never contemplated that Parliament
should mechanically reproduce all or most of the categories in the legislative
entries almost verbatim and not to apply its mind to decide in what
circumstances and in what class or classes of cases the advisory-board should
be dispensed with; (3) that even if cls.(4) and (7) were treated as
alternatives and not as a rule and an exception, a law under cl.(7) (a) would
be an exceptionally drastic law and such a law must be intended for an
exceptional situation and not for all the situations which would fall under the
heads in the entries, under which a detention law is permissible. It followed,
therefore, that class or classes of cases and the circumstances must be of a
special nature to require legislation which dispenses with the safeguard of an
advisory board. (11-3-176) Mahajan, I., (as he then was) held.that if clause
(7) were regarded as an independent clause or an alternative to cl.(4), cl.
(4) would , be rendered nugatory and such a
construction would amount to the Constitution saying in one breath that a
detention law cannot provide for detention for a period longer than three
months without reference to an advisory board and in the same breath saying
that Parliament, if it so chose, can do so in respect of or any of the subjects
mentioned in the lists. If that was so, it would have been wholly unnecessary
to provide such a safeguard in the Constitution on a matter which seriously
affected personal liberty. On the construction of cl. (7), he held that the
Constitution recognised varying scales of duration of detention with the idea
that this would vary with the nature of the apprehended act, detention for a
period of three months in ordinary cases, detention for a longer period with
intervention of a board in more serious cases, and detention for a longer
period than three month without the intercession of a board for still more
dangerous class or Classes and for acts: committed in grave situation,-,."
(238-239) About a mouth before the Supreme Court delivered its judgment in Gopalam(1)'the
High Court of Calcutta in Sitendra Narain Ray Choudhury v. The Chief Secretary
to the Government. of West Bengal (2) (F. B.; Ref. 1 of 1950) had decided by a
majority that setting out five out of the six heads in the entries in s. 1 2 of
the 1950 Act was sufficient compliance of the requirements under cl. (4) (b)
read with cl. (7) (a of-Art'. 22.
(1) [1950] S. C. R. 88.
(2) I. L. R. [1954] 1 Cal, 1.
15 Counsel for the petitioner canvassed for
the reasoning given by Fazl Ali and Mahajan, JJ., while the learned Attorney
General contended that the reasoning in the judgments of the majority judges
was in consonance with clauses (4) and (7) of Art. 22. He commended the
following propositions for our acceptance:
(1) The Constitution authorises preventive
detention and makes, specific provisions for it in Art. 22(4) to (7);
(2) The heads in respect of which preventive
detention can be ordered are carefully and deliberately made in entries 9 and 3
of Lists I and III;
(3) The. Constitution provides two separate
and independent situations where preventive detention can be directed, namely
the, substantive part of cl. (4)(a) and cl. (4)(b) read with cl. (7)(a) and
(b);
(4) Except for the enabling power in cl.
(7)(a) both Parliament and State legislatures
are competent to make preventive de'tention laws under entry 3 of List III;
(5) So far as cl. (7) of Art. 22 is
concerned, it is an enabling clause and provides for two situations in which a
law under that clause can be made by Parliament alone. In other words, these
two situations are independent of each other and are not conditions-precedent,
The learned Attorney General argued that what cl. (7)(3) provides is that
Parliament may. prescribe the circumstances or prescribe class or classes of
cases for which a person can be detained for 'more than three months without
reference to an advisory board. In other words the clause is an enabling clause
authorising Parliament (1) to prescribe the circumstances under which a person
may be.
detained for a period longer than three
months de hors the advisory board; and (2) to prescribe the class or classes of
cases etc. In this sense Parliament can do either of the two, and therefore,
though cl. (7)(a) uses the word 'and', that word is used in the disjunctive and
not in conjunctive sense. 'Circumstances', according to him, mean the heads or
subjects set out in the two legislative entries, and the expression "class
or classes of " mean incidents or activities but is not related to
individuals or group or groups of individuals.
The learned Attorney-General finally urged
the fact. which all of us are too well conscious of, that the majesty decision
in Gopalan(1) has stood for such a long time that it should not be disturbed
unless there are strong and manifest reasons to do so. Counsel for the
petitioner, on the other hand, argued that the majority decision was contrary
to the scheme and the terms, of Art. 22. Since the matter involves the right of
personal liberty, the fact that 'the decision has held the field should not. by
itself be a deterrent against its reconsideration. The principles upon which
such reconsideration would be resorted to have been explained by this Court in
a number of decisions, of, which we need remind ourselves of two only. The
Bengal Immunity Co. Ltd. v. Bihar(2) and the Legal Remembrancer, State of West
Bengal (1) [1950] S. C. R. 88. (2) [1955] 2 S.C.R. 603.
16 v. The Corporation of Calcutta.(1) These
decisions have laid down that this Court would review its earlier decisions if
it is satisfied of its error or of the baneful effect such a decision would
have on the general interest of the public or if it "is inconsistent with
the legal philosophy of our Constitution," and that in constitutional
matters this Court would do so more readily than in other branches of law as
perpetuation of an error would be harmful to public interests. Indeed, the
inhibit of the doctrine of Stare decisis is in this case, partly reduced ,by
the fact that despite the majority decision in Gopalan (supra) up holding the
validity of the impugned s. 12 of the Act of 1950, and presumably in deference
to the minority views, that section was removed from the Act the very next year
by the Preventive Detention (Amendment) Act, 1951. Further, the major premise
in the majority decision ,that Art. 22 was a self-contained code and that
therefore the provision of a law permitted by that Article would not have to be
considered In the light of the provisions of Art. 19 was disapproved in R. C.
Cooper v. The Union of India.(2) Nevertheless, we have to bear in mind the
accepted rule that earlier decisions are not to be upset except upon a clear
compulsion especially when the legislature has acted upon-, as perhaps
Parliament did while enacting the impugned s. 17A.
Art. 19(1) in the first instance, guarantees
the several freedom, well accepted in all democratic systems, subject of course
to the power of the State to impose reasonable restrictions in public interest
and public good. Art. 21 then guarantees the equally well accepted safeguard
against arbitrary deprivation of life and personal liberty save in accordance
with procedure established by law, thereby ensuring government by law and not
by men. Cls. (1) and (2) of Art 22 again lay down the well-accepted rule that a
person detained in custody shall be expeditiously informed of the grounds of
his arrest and guarantee II& right to the assistance of a legal
practitioner of his choice and the necessity of his having to be produced
before a magistrate thus securing a judicial as against a legislative or an
executive sanction for his arrest.
The non-applicability of cls. (1) and (2)
provided by cl.
(3) of Art. 22 in the case of an enemy-alien
and a person detained under a preventive detention law was provided for, as is
notorious, as a sequel to the tragic incidents and danger to both the internal
and external security of the country following the partition. Cl. (3)
consequently was inserted as an exception to the rule laid down in cls. (1) and
(2) of Art. 22. There can be no doubt whatsoever that the Constitution makers
accepted preventive detention ',as a necessary evil, to be tolerated in a
constitutional scheme which otherwise, guaranteed personal liberty in its wellaccepted
form. Having thus recognized the necessity of preventive detention laws, the
constitution-makers first delineated in clear and precise terms certain. heads
or such in respect of which only Parliament by itself and concurrently with
State legislatures was empowered to enact detention laws under entries 9 and 3
of Lists I and III respectively. Secondly, they provided in cl. (4) that no
such law shall authorise detention of a person for a period longer than
three,months as (a) an advisorywith (1) [1967] 2 S.C.R. 176. (2) [1970] 3
S.C.R. 530.
17 of judicial training has reported that
there is sufficient cause for detention; or (b) a person is detained in
accordance with a Parliamentary statute passed under cl..(4)(b) read with cl.
(7)(a) and (b). These provisions clearly indicate that ordinarily preventive
detention can only be for a period of three months only. If a law, however,
provides for detention for longer period, it can only do so with the
intercession of an impartial, independent body, viz., an advisory board.
Sub-cl. (b) of cl. (4), however, provides that a detention for a longer period
than three months can be had, if a person is detained under a law made by
Parliament under cl. (7)(a) and (b).
Cl. (4) thus lays down two situations in
which the rule of three months detention can be relaxed; (1) where the
intercession of an advisory board is provided, and (2) where Parliament has
enacted a. law under cl. (7)(a) and (b). The proviso to sub-cl. (a) of cl. (4)
lays down that even where there is intercession of. the board, detention cannot
be in any event for more than the maximum period prescribed in the law in
question under cl. (7). Reading cl. (4) thus in its entirety, the plain meaning
of the language used there is clear. It first lays down the ordinary rule of
detention being only for three months and then provides two exceptions to it,
viz., (a) detention for longer period of intercession of an advisory board is
provided for, and (b) where Parliament acts under cl. (7) (a) and (b), subject
in both the cases to the maximum period provided in the law under
consideration. It will be seen that sub-cl. (a) of cl. (4) is not restricted to
Parliamentary Statutes, while sub-cl.
(b) is and applies to an Act passed by
Parliament alone.
We next go to cl. (7). That clause by its
sub-cl. (a) provides "Parliament may by law prescribe(a) the circumstances
under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months without. the opinion 'of 'an
Advisory Board in accordance with the provisions of sub-cl. (b) of cl.
(4)." Two alternative constructions of cl. (7) (a) were suggested before
US. The learned Attorney-General submitted that cls. (4) and (7) should be read
together, and if so read, they mean, two independent powers; (1) to make a law
providing for longer detention with the provision for an advisory board, and
(2) to make a low providing for a longer detention without an advisory board.
He argued that, therefore, the powers were independent or alternative and
'there was no question of' cl. (7)(a) being an exception to cl. (4 a Secondly,
he argued that the words "may by law prescribe" in cl. (7)(a) meant
that that sub-cl. was an enabling provision which authorised Parliament (i) to
prescribe the circumstances. under which, and (ii) the class or classes of
cases in which a person can be detained for a longer period without the
intervention of an advisory board.
Since the constitution enables Parliament to
perform two things, it has the power to do either of them and therefore the
word 'and' there used has to be read in the context as having been used in the
disjunctive sense. Maxwell on Interpretation of Statutes (11th ed.) 229) 'On
the other hand, the contention on behalf of the petitioner was that cl. (4) (a)
laid down a safeguard that there has to be the intervention of a board in all
cases where the law Provides for detention for a period longer than three
months except 44 SupCI/73 18 in the case when Parliament choose to exercise its
power under cl. (7) (a).
In determining which of these constructions
is correct, it is necessary to consider first the 'nature and scope of cl.
(4)(a). Under that clause, no law, whether
passed by Parliament under entry 9 of List I and or by Parliament and the State
Legislature under entry 3 of List III can authorise longer detention than three
months unless it provides for the intercession of an advisory board. Cl.
(4)(a) thus lays down a limitation on the
legislative power conferred on both the Central and State legislatures while
exercising their power under the said entries. The position then is that
although Parliament and the State Legislatures have the power to make detention
laws under any of the topics or subjects enumerated in the two entries, cl.
(4)(a) first provides that a law passed by either of them cannot provide
detention for a period longer than three months. It next lays down that if such
a law provides detention for a period longer than three months, it can do so
only if it includes the safeguard of the intercession of an advisory board,
which the Constitution was anxious enough to see that it contained persons who
were or would be qualified to hold the position of a High-Court judge.
Whereas sub-cl. (a) of cl. (4) applies to
legislation enacted by both Parliament and the State Legislatures, subcl. (b)
applies to laws made by Parliament. Sub-cl. (b) provides that the limitation
placed ,on the power of Parliament under sub-cl. (a) is not to apply to a law
made by Parliament under cl. (7)(a) and (b). If the theory of alternative power
of Parliament either to enable a law providing for a longer period but with the
intercession of a Board or to enact a law under cl. (4)(b) read with cl.
(7)(b) providing also for a longer detention
but without the intercession of a board, were accepted cl. (4) (a) would be
totally nullified by cl. (4)(b) read with cl, (7) (a). In other words, such a
construction would mean that though the constitution makers laid down a
safeguard against a law providing for a longer duration, they, in the very same
breath, nullified that safeguard by generally empowering Parliament under cls.
(4) (b) read with cl. (7) (a) to enact laws with longer period of detention
without the intercession of an advisory board. Surely, such an interpretation
which nullifies one part of the same clause while interpreting its another pad
has to be avoided.
Further, if cl.(4) (b) read with cl. (7) (a)
was intended to override cl. (4) (a) and the safeguard required in a law
providing for detention for a longer period the constitution-makers would have
confined cl. (4)(a) only to laws made by the State Legislatures and would not
have applied it to Parliament as well. The constitution-makers in that case
would have simply used in used in cl. (4) (b) and cl. (7) (a) language such as
"Nothing contained in cl. (4) (a) shall apply to 'a law of preventive
detention made by Parliament". The acceptance of the theory of alternative
power of Parliament means that whereas State laws providing longer detention
would require the intercession of an advisory board, laws passed by Parliament,
though, providing for longer detention, would not It is impossible to conceive
that such a result could have been intended by the constitutionmakers, who were
careful enough to provide for the intervention of an impar19 tial and an
independent body in laws whether made by Parliament or State Legislatures
providing for detention for longer period than three months. On an analysis of
the two clauses (4) and (7), the, conclusion is inescapable that what they
provide is (a) that ordinarily, detention provided by a preventive detention
law should not be for a period longer than three months; (b) that if, however,
such, a law does provide for a longer period than three months, it must provide
for the intercession of an advisory body and (c) that situations may arise when
in certain classes of cases Parliament alone should be empowered to enact a law
which provides for a longer detention even without the inter,cession of an
advisory board. On a careful consideration of the language of cls. (4) and (7),
the theory of independent or alternative power of Parliament breaks down and
cannot be accepted, firstly, because the language of the two clauses does not
bear out such a construction, and secondly, because the construction under
which cl. (4) (b) read with cl. (7)(a) lays down an exception to cl. (4)(a)
harmonises both the clauses and brings out the true intention in enacting the
two clauses.
The next question is what kind of a law which
can provide for a longer duration of detention and at the same time can
dispense with the advisory board is permissible under cl.
(7) (a). Such a law has to be one passed by
Parliament and has to be one which prescribes "the circumstances under
which, and the class or classes of cases in which", a person may be
detained for a longer period than the one contemplated by cl. (4), i.e.., three
months and without the requirement of an advisory board. The expression
"the circumstances under which and the class or classes of cases"
evoked a controversy in Gopalan(1) which resulted in difference of opinion
between the majority and the minority judges. That controversy practically in
the same terms was repeated before us, one side contending that enumeration of
the heads or subjects in the two entries on which a law of detention can be
made would sufficiently comply with the requirement of cl. (7) (a), and the
other side contending against such a meaning being given to the aforesaid
expression. In deciding that controversy, one broad consideration at once
arises and that is that the circumstances and the classes of cases mentioned in
cl.
(7)(a) are not limited to any one or more of
the subjects set out in the two entries in respect of which a detention law can
be made'. If the contention that enumeration of these subjects would satisfy
the requirement of cl., (7) (a) I were to be right, a Parliamentary law can
enumerate all the six subjects in the two entries and provide detention for a
longer period for reasons connected with all of them..
Both, the Preventive Detention Act, 1950 and
the impugned Act excepted the subject of maintenance of essential supplies and
services, but in the absence of any restrictive language in that respect in.cl.
(7)(a), they need not have done so. That means that Parliament can pass a law
dispensing with the advisory board by merely stating therein all the heads or
subjects it. the 'two entries. If that ,were done, the safeguard provided in
cl. (4) (a) can be rendered totally infructuous. If that was the intention, cl.
(7) (a) need not. have, been framed in an elaborate language. as has been done
and it would (1) [1950]SCR 88 20 have been sufficient to provide that nothing
in cl. (4) (a) shall apply to a law passed by Parliament which sets out the
subjects in the entries or any one or more, of them. Why did. the
constitution-makers consider it necessary to provide in cl. (7)(a) that the law
must prescribe the circumstances and the classes of cases ? The insertion of
such an expression coupled with Parliament being the only body which can enact
such a law seems to suggest that cf. (7) (a) is an exception to cl. (4)(a) and
it being such an exception, Parliament alone is empowered to pass a law dealing
with exceptional circumstances and exceptional classes of cases. if enumeration
of the heads in the entries were to mean compliance of prescribing
circumstances and classes of, cases, Parliament would in such a law be dealing
with all situations and all classes of cases from the lowest to the most
extraordinary or abnormal and not with some only requiring a treatment
different. from that envisaged by cl.
(4) (a). In such a case, cl. (4) (a) would,
again be rendered nugatory, for Parliament can, by enumerating verbatim the
heads or subjects set out in the entries, do away with the requirement of cl.
(4) (a). Could that have been the intention in, enacting cl.(7) (a)? It clearly
could not have been so intended for the simple reason that deprivation of
personal liberty even for a period' longer than three months, ordinarily considered
to be sufficient, required, according to cl. (4) (a), at least the safeguard of
an impartial body against executive action of a drastic kind.
The difficulty in equating enumeration in
verbatim of the heads of legislation permissible under the two entries in Lists
I and III with both the circumstances and the classes of cases is that though
the activities of persons thought necessary for detention may vary in degrees
of their impact depending upon the situations existing at the time, all of them,
irrespective of their degree of intensity and impact, would be clubbed together
so as to treat them equally in a law under cl. (7) (4). In such a cage even
activities, which would 'not justify the dispensation of the safeguard of an
advisory board as against those which need such dispensation, would be treated
equally, with the result that in respect of all activities and all situations
Parliament would be enabled to dispense with the safeguard of the intervention
of an advisory board. What use would then be of having cl. (4) (a) if its
requirement can be avoided by a law which simply sets out the subjects or some
of them from the two entries? As Mahajan, J., pointed out in Gopalan,(1) the
language of cls. (4) and (7) show that they deal with three distinct situations;
(1) where the activities and the persons likely to perpetrate them, though
connected with the subjects in the entries, are of such a nature and
consequence that three months' detention would meet the situation; (2) where
the activities and the persons likely to perpetrate them are of such nature and
consequence that they need a longer period of detention but with the
intercession of an' advisory board, and (3) where the activities and the
persons likely to resort to them are of such a nature and consequence that the
situations 'they created are such as require not only a longer period of
detention, but also the dispensation of intercession by an advisory body. in
times of severe emergency when the security of the,country or a part of it is
threatened (1) [1950] SCR 88 21 for instance, not only detention for a longer
period might become necessary but the intervention of an advisory body to which
information of a vital nature would have to be disclosed might be regarded both
as inconsistent with the safety of the country or the community as well as
cumbersome. Such situations may arise not merely in cases involving the
security of the nation or part or parts of. it but may arise in connection with
the rest of the subjects 'in the entries. Sabotage of essential supplies and
services would in given circumstances be as dangerous as activities involving
danger to the security of the, State and/ or public order.
Circumstance; would ordinarily mean
situations or events extraneous to the activities of a concerned person or a
group of persons, such as riots, disorders, tensions, religious, racial,
regional or linguistic or other such commotions which might by their
pre-existence accentuate the impact of such activities affecting the. security
of the country or a part of it or the public order. Class or classes of cases,
on the other hand, relate to group or groups of individuals, who by the nature
of their activities fall under one particular group or groups by their common
or similar objective or objectives. The subjects or heads set out in the
legislative entries were intended to delineate the bounds within which the
legislatures can pass detention laws. The purposes of these entries and of cl.
(7) (a)_are distinct; that of the ,entries to lay down the topics in respect of
Which legislation can be made and that of cl. (7) (a) to distinguish the
ordinary from the exceptional to which only the salutary safeguard provided by
cl. (4) (a) would not apply. Mere repetition of the subjects or topics of
legislation from the entries would not mean prescribing either the
circumstances or the classes of cases to which only, as against the rest of the
individuals and their activities, the safeguard of intercession of an
independent body would not apply. The law under cl. (7) (a) would,. as compared
to the one to which cl.(4) (a) would apply, be a drastic law and the
presumption would be that such a drastic law would apply to exceptional
circumstances and exceptional' activities expressly and in precise terms
prescribed.
If cl. (7) (a) were construed to permit mere
enumeration of the subjects in respect of which there is power to enact
preventive detention laws, all those subjects can be set out verbatim, in which
event cl. (4) (a) would be rendered otiose. All act prejudicial to the
maintenance of essential supplies and services e.g. possession of controlled or
rational food articles in excess of statutory limits, would be equated for
treatment with an act prejudicial to the security of India or of a State. On
the, other hand, an act sabotaging, for instance, lines of supplies and
communication in times of an emergency, prejudicial to the maintenance of
essential supplies and services would be equated with an act prejudicial to
maintenance a public order in one locality or affecting a section of the
community. Cl. (7)(a), thus, envisages 'Parliament to apply its mind and
prescribe specific situations and types of cases which require a drastic law
dispensing with the intervention of an advisory board on the ground that such
intervention would in such 'exceptional circumstances and.
in cases of dangerous individuals would be
cumbersome or unsafe. Reading cls. (4)(a) and (7)(a) together, it is quite
clear that intercession of an independent body like 22 the advisory board was
regarded by the constitution-makers as ;An essential safeguard against a
jurisdiction primarily based on suspicion and apprehension, which could be
dispensed with in extraordinary circumstances and with regard to dangerous
persons and their apprehended activities specifically prescribed in the law
made under cl. (7) (a).
In this view, the meaning of the word 'and'
in that clause must. be held to have its ordinary conjunctive sense, the
context in that clause also requiring not the opposite but its commonly understood
sense, requiring Parliament to prescribe both the circumstances and the classes
of cases in which only consideration by the board can be. dispensed with.
In Gopalan(1) Patanjali Sastri, J., (as he
then was) expressed the view that in such a matter as preventive detention
which by its nature depended on the likelihood of certain apprehended acts, it
would be impossible for Parliament to exhaustively set out the circumstances or
the classes of cases which a law under cl. (7)(a) would be made.
The difficulty felt by Patanjali Sastri, J.,
was sought to be answered by Fazl Ali, J. (p. 178) by referring to Regulation
18B of the 'British Defence of the Realm Regulations, 1939 as and by way of a
concrete illustration where activities and circumstances of a more dangerous
type could be classified from the rest. Regulation 18B laid down the following
classes of cases where the Secretary of State could direct preventive detention
:(1) If the Secretary of State has reasonable cause to believe any person to be
of hostile origin or associations;
(2) If the Secretary of State has reasonable
cause to believe any person to have been recently "concerned in acts
prejudicial to the public safety or the defence of the realm or in he
preparation or instigation of such acts;
(3) If he has reasonable cause to believe any
person to have been or to be a member of, or to-have been or to be active in
the furtherance of the objects of any such organisation mentioned; and (4) If
he has reasonable cause to believe that the recent conduct of any person for
the time being in an area or any words recently written or spoken by such a
person expressing sympathy with the enemy, indicates or indicate that that
person is likely to assist the enemy.
Mahajan, J., (as he then was), likewise,.
referred to the classification of the prejudicial activities set out in R.
34(6) of the Defence of India Rules, 1939.
Such a classification of acts is also to be found in R. 36(6) of the Defence of
India Rules, 1971. S. 3(2), of the West Bengal (Prevention of Violent
Activities) Act, 19 of 1970, similarly, classifies certain activities as
falling within the expression "acting in any manner prejudicial to the
security of the State or the maintenance (1) [1950] SCR 88.
23 of public order." That provision runs
as follows "(2) For the purposes of sub-section (1), the expression acting
in any manner prejudicial to the security of the State or the maintenance of
public order' means(a)using, or instigating any person by words, either spoken
or written, or by signs or by visible representations or otherwise, to use, any
lethal weapon(i) to promote or propagate any cause or ideology, the promotion
or propagation of which affects, or is likely to affect, adversely the security
of the State or the maintenance of public order; or (ii)to overthrow or to
overawe the Government established by law in India.
x x x x x x (b) committing mischief, within
the meaning of section 425 of the Indian Penal Code, by fire or any explosive
substance on any property of Government or any local authority or any
corporation owned or controlled by Government or any University or other
educational institution or on any public building, where the commission of such
mischief disturbs, or is likely to disturb, public order; or (c) causing insult
to the Indian National Flag or to any other object of public veneration,
whether by mutilating, damaging, burning, defiling, destroying or otherwise, or
instigating any person to do so.
x x x x x (d) committing, or instigating any
person to commit, any offence punishable with death or imprisonment for life or
imprisonment for a term extending to seven years or more or any offence under
the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission
of such offence disturbs, or is likely to disturb, public order; or (e) in the
case of a person referred to in clause (a) to (f) of Section 1 10 of the Code
of Criminal Procedure, 1898, committing any.
offence punishable with imprisonment where
the commission of such offence disturbs , or is likely to disturb public
order." These examples are sufficient to dispel fear of any practical
difficulty in prescribing specific circumstances under which and the classes of
cases which need dispensing with the intercession of an advisory board..
In our opinion, cl. (4) (a) of Art. 22 lays
down it rule to which cl. (4) (b) read with cl. (7) (a) is an exception.
Upon that view cl. (7)(a) must be construed
as a restriction on Parliament's power of making preventive detention laws in
the sense that it can depart from the rule laid down in cl.
(4)(a) and dispense with reference of cases
24 to an advisory board only by a law which prescribes both the circumstances
under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months without obtaining the opinion of
an advisory board in accordance with the provisions of sub-cl. (a) of
61. (4). With great respect to the
distinguished judges who formed the majority in Gopalan,(1) we are notable to
concur in their views on the construction of cl. (4) (b) and cl.
(7) (a) of Art. 22. Sec. 17A of the Act, in
our opinion, has failed to comply with the requirement of cl. (7)(a), and has
therefore, to be declared bad as being inconsistent with that clause., In
Gopalan(1) the majority court had held that Art. 22 was a self-contained. Code
and therefore a law of preventive detention did not have to satisfy the
requirements of Arts.
19, 14 and 21. The view of Fazl Ali, J., on
the other hand, was that preventive detention was a direct breach of the right
under Art. 19(a) to (d) and that law providing for preventive detention had to
be subject to such judicial review as is obtainable under cl. (5) of that
Article. In R.C. Cooper v. Union of India(2) the aforesaid premise of the
majority in Gopalan(1) was disapproved and therefore it no longer holds the
field. Though Cooper's case (2 ) dealt with the inter-relationship of Art. 19
and Art. 31, the basic approach to construing the fundamental rights guaranteed
in the different provisions of the Constitution adopted in this case held the
major premise of the majority in Gopalan(1) to be incorrect. In view of this
constructional position, counsel for the petitioner and for the intervener made
submissions on s. 13 of the Act as amended by s. 6(6) (d) of the Defence of
India Act as being in violation of Art. 14 and also on ss. 3, 8, 9, 10, 11 and
12,of the Act even as they stood before the enactment of s.6(6) (d) of the
Defence of India Act on the ground that those provisions were not reasonable
restrictions and were therefore void and the subsequent declaration of
emergency and the enactment of s. 6(6)(d) could not breathe life into those
provisions which were already void. Counsel also contended that the maximum
period of detention prescribed by the amended s. 13 and by s. 17A(2) (d) did
not satisfy Art.
22(7)(b) since the period fixed by Parliament
therein is three years or until the expiry of the Defence of India Act,
whichever is later, an event uncertain as no one can anticipate when the
emergency would be terminated. However, in the view we have taken of s. 17A of
the Act we need not go into them as in accordance with the practice followed by
this Court we need not decide more than what is necessary.
We, therefore, do not express any views on
the aforesaid contentions raised by counsel. It is, therefore, enough for us to
declare s. 17A as not having satisfied the requirements laid down in cl. (7)
(a) of Art. 22 and therefore bad.
The consequence is that the petition succeeds
and we direct that the petitionerable released forthwith from his detention.
V. P. S. Petition allowed.
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