Masood Alam Vs. Union of India &
Ors  INSC 7 (11 January 1973)
CITATION: 1973 AIR 897 1973 SCR (3) 268 1973
SCC (1) 551
R 1973 SC2469 (4,5,6) R 1974 SC 255 (13) R
1974 SC 432 (7) R 1974 SC2151 (18) F 1975 SC 90 (8,13) C 1982 SC1315 (31) RF
1986 SC2177 (40) R 1987 SC2332 (22) RF 1990 SC1196 (8)
Maintenance of Internal Security Act, 1971
Section 3(1), Section 14(2)"Fresh facts"-Whether fresh detention can
be ordered without fresh facts after revocation of expiry of the earlier
order-Mala fides-Whether detention order under Maintenance of Internal Security
Act malafides, if objectionable activities attract preventive provisions
(Chapter VIII) of the Cr. P.C. also-Whether second detention order rendered
mala fide by the fact that the order was served when the detenu was already in
The detenu was arrested on June 15, 1972
under section 3(1)(a)(i) Arid (ii) of the Maintenance of Internal Security Act,
1971. The order was issued on the same date on which he was arrested under
sections 107/117/151 of the Cr. P.C.
The order was to expire on the 26th June,
1972 as the same was not approved under s. 3(3) by the Government. On 25-61972,
a fresh order of detention was passed which was served on the detenu on
26-6-1972 while in jail. The second order did not mention any fresh grounds of
detentions. Both the detention order were challenged on the groups (i) that no
fresh facts were disclosed for the fresh detention as required by s. 14(2) of
act and (iii)that the orders were mala fide. Granting the writ of habeas corpus
and directing the release of the petitioner.
HELD : The second detention order was made
without alleging any fresh facts after the expiry of the first order. The power
of preventive detention is an extraordinary power intended to be exercised in
extraordinary emergent circumstances. The legislative scheme of ss. 13 and 14
of the Act suggest that the detaining authority is expected to know and to take
into account all the exising grounds and make one order of detention which must
not go beyond the period fixed and fix the maximum period of detention upto 12
months from the date of detention. It is to effectuate this restriction on the
maximum period and to ensure that it is not rendered nugatory or ineffective by
resorting to camouflage of making a fresh order operative so-on aft& the
expiry of the period of detention, and also. to minimise the resort to
detention orders, that s. 14 restricts the detention of a person on given set
of facts to the original order and does not permit a fresh order to be made on
the same grounds which were in existence when the original order was made.
[276H-277D] Manubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252 of
1972 dated 31-10-1972, relied on.
Sampat Prakash v. State of J. & K.
3 S. C. R. 574, distinguished.
If the grounds are relevant and germane to
the object of the Maintenance of Internal Security Act, then merely because the
objectionable activities covered thereby also attract the provisions of Chapter
VIII of the Cr. P.C., the preventive detention cannot for that reason alone be
considered to be malafide provided the authority con is satisfied of the
necessity of the detention as contemplated by the Act. [273C] 269 Sahib Singh
Duggal, v. Union of India,  1 S.C.R.313, Mohammed Salem Khan v. C. C.
Bose, A.I.R. 1972 S.C.2256, Boriahan Gorey v. State of West Bengal, A.I.R. 1972
S.C.2256, relied on.
Merely because a person concerned has been
served with a fresh detention order while in custody, that service cannot
invalidate the order of detention. Although the past conduct, activities and
antecedent history should be proximate in point of time and should have
rational connection withthe necessity for detention, what period of past
activity should beconsidered is within the discretion of the detaining
authority. [275C-H] Ujagar Singh V. State of Punjab,  S.C.R. 757, Makhan
Singh Tarsikka v. State of Punjab, A.I.R. 1964 S.C. 1120 and Rameshwar Shaw v.
District Magistrate Burdwan,  4 S.C.R. 921, referred to.
Hadibandhu Das v. The District Magistrate,
Cuttack,  1 S.C.R. 227 and Kshetra Gogoi v. State of Assam,  2
S.C.R. 517, held inapplicable.
ORIGINAL JURISDICTION : Writ Petitions Nos.
469 and 470 of 1972.
Petitions under Article 32 of the
Constitution of India for the enforcement of fundamental rights.
Bashir Ahmad, K. L. Hathi, Manzar Ul-Islam
and P. C. Kapur, for the petitioners.
B. D. Sharma and R. N. Sachthey, for
respondent No. 1.
D. P. Uniyal and O. P. Rana, for respondents
Nos. 2 to 6 (in W.P. No. 469) and for respondent Nos. 223 (in W.P. No. 470).
The Judgment of the Court was delivered by
DUA, J. These two petitions under Art. 32 of the Constitution for writs in the
nature of habeas corpus (Masood Alam v. Union of India & ors. W.P. no. 469
of 1972 and Abdul Bari Kairanvi v. Union of India W.P. No. 470 of 1972), have
been heard together and are being disposed of by a common judgment.
Writ Petition No. 469 of 1972:
In writ petition no. 469 of 1972 we made a
short order on December 20, 1972 directing the release of Masood Alam unless he
was required in some other case, reserving our reasons for his release to be
given later. We now proceed to deal with the arguments advanced on his behalf
and give our reasons for our decision.
Masood Alam, detenu-petitioner, was arrested
on June 15, 1972 pursuant to an order of detention dated June 14, 1972.
No copy of that order is produced on the
record. It is, however, not disputed that the said order was made by the
District Magistrate under S. 3 (1) (a) (i) and (ii) of the Maintenance of
Internal 270 Security Act, 1971 (Act no. 26 of 1971) (hereinafter called the
Act). The grounds of detention signed by the District Magistrate, Aligarh were
served on the, petitioner on June 17, 1972, pursuant to s. 8 of the Act. Those
grounds read :"(1) That you have been exciting communal feelings amongst
Muslims and feeling of disaffection towards the Government of India and of
hatred to other communities. You have also been advocating use of force by
Muslims in India to secure withdrawal of the A.M.U.
(Amendment) Bill, 1971-now an Act. These
actions, which are a threat to security of the State and the maintenance of
public order, find support from the following instances :(i) that you are
organiser at Aligarh of Youth Majlis a paramilitary Organisation which imparts
training to. Muslims in the use of lathi, swords and knives, etc. You are
member of Al Jehad, an international Islamic, movement. You are Naib Amir Ala
Youth Majlis, U.P.
(ii)You went to participate in Youth Majlis
training camp at Varanasi. You were trained in the use of knife and
demonstrated the same at a function of the Youth Majlis held in Mohalla
(iii) You participated in a meeting addressed
by Shri Afaq Ahmed, Organiser, Youth Majlis, U.P.
(iv)On 12-7-1971 you stressed upon members of
.Youth Majlis to organise branches of Youth Majlis in each Mohalla. You went to
Allahabad to participate, in the Youth Majlis Camp organised there from 23 to
26-6-71 and were made Naib Ala, U.P.
(V) You attended the meeting held at your
residence on 29-10-71 wherein training programme of Youth Majlis in use of
knife and aiming by air gun was discussed.
(vi)You attended a private meeting of Muslim
Majlis on 11-1-1971 at the residence of Dr.
Hanif in Mohalla Rasalganj, Aligarh. You disclosed
there that the Youth Majlis was fully prepared to meet any situation on
communal basis and pleaded for funds for Youth Majlis.
271 2.That you have extra territorial
loyalties and are, therefore, a threat to security of India which is evidenced
from the following instances :(a) You visited Pakistan and returned from there
on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad,
Organiser Youth Majljs, U.P. In this meeting you disclosed that you had
developed many contacts in Pakistan and that people there had given you enough
money for the help of Muslims in Aligarh.
(b) You on 16-7-1971 along with Abdul Bari
Qairanvi and Mohammad Obed were noticed criticising Government of India's
policy towards Bangla Desh and accused Government of India and Indian Press of
carrying on a false, propaganda.
(c) You attended a meeting on 20-10-1971 held
at your residence wherein Abdul Bari Qairanvi asked the volunteers to remain
vigilant and prepared in view of Indo-Pak armies. facing each other to meet the
situation which might result there from.
The Government, it appears, did not accord
its approval of the petitioner's detention as required by s. 3 (3) of the Act.
According to para 22 of the Writ Petition, the contents of which are not
controverted, as expressly stated in para 12 of the counter affidavit, on June
26, 1972 at about 12 noon the following order was served on the petitioner :"Sub
: Release under Maintenance of Internal Security Act on 25-6-1972 at 23.50 hrs.
under D.M. Aligarh Order dated 25-6-1972.
You are hereby informed that you are released
on 25-6-1972 at 23.50 hrs. vide D.M. Aligarh Order dated 25-6-1972 on account
of nonreceipt of approval from State, Government but you were detained in Jail
as under trial under Rules 107/117, Cr. P.C. You may inform your relations or
lawyer if you want to arrange your bail.
Sd/Superintendent, Distt. Jail,
Aligarh." A fresh order of detention was also passed on June 25, 1972.
This order was made by the Governor of U.P.
under s. 3(1) of 272 the Act and was served on the petitioner on June 26, 1972
at about 3.30 p.m. It reads :
"Whereas the Governor of Uttar Pradesh
is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob
resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing
him from acting in any manner prejudicial to the security of the State and the
maintenance of public order, it is necessary so to order NOW THEREFORE, in
exercise of the powers conferred by sub-section (1) of section 3 of the Maintenance
of Internal Security Act, 1971 (no. 26 of 1.971), the Governor is hereby
pleased to direct that the said Sri Masood Alam shall be detained under
subclause (ii) of clause (a) of sub-section (1) of subsection (3) of the said
Act in the District Jail, Aligarh in the custody of the Superintendent of the
By order of the Governor, Sd/.
R.K. KAUL Special Secretary".
On behalf of the petitioner both the
aforesaid, orders of detention are assailed before us. The first contention
pressed by Mr. Bashir Ahmad, appearing for the petitioner relates to the
earlier order of detention. He has tried to assail that order with the object
of showing mala fides of the detaining authority in making ,the second order.
In this connection it is noteworthy that according to the return of the State
of Uttar Pradesh as averred in para27(r) of the counter-affidavit of Shri R. K.
Kaul, Special Secretary, "the petitioner was arrested on 15th June 1972
under section 107/117/151, Cr. P.C. and the, order of detention was also served
on him by the District Magistrate on the same date. Orders for his release were
issued by the District Magistrate under the Maintenance of Internal Security
Act but he continued to be in Jail under the above sections of the Cr.
P.C." The order of release mentioned in this para has reference to the,
order dated June 25, 1972 when the petitioner was supposed to have been
released from his detention because of non-approval of his detention by the
State Government. Mr. Bashir Ahmad the counsel for the detenu has contended
that the grounds of detention dated June 17, 1972 served on the petitioner
under s. 8 of the Act only suggest a threat to the security of the State and
the maintenance of public, order and that this does not mean that the
petitioner was likely to act in the near future in a manner prejudicial to the
security of State and maintenance of public order. This conten273 tion ignores
para 3 of the grounds in which it is clearly stated that the District
Magistrate was satisfied that the petitioner was likely to act in a manner
prejudicial to the security of India, security of the State and maintenance of
public order and that with a view to preventing him from so acting, it was
necessary to detain him. The submission that the use of the word 'likely' in
this para only brings the petitioner's case within the purview of the
provisions of Chapter VIII (Security Proceedings) of the Criminal Procedure
Code thereby justifying only proceedings under s.
107 of the Code and that an order of
detention in such circumstances is an abuse and misuse of the provisions of the
Act has only to be stated to be rejected. If the grounds are relevant and
germane to the object of the Act then merely because the objectionable activities
covered thereby also attract the provisions of Ch. VIII, Cr. P.C.
the preventive detention cannot for that
reason alone be considered to be mala fide provided the authority concerned is
satisfied of the necessity of the detention as contemplated by the Act : see
Sahib Singh Duggal v. Union of India(1), Mohammad Salem Khan v. C. C. Bose(2)
and Borjahan Gorey v. The Stale of West Bengal(3). The jurisdiction of
preventive detention sometimes described as jurisdiction of suspicion depends
on subjective satisfaction of the detaining authority. It is designed to
prevent the mischief from being committed by depriving its suspected author of
the necessary facility for carrying out his nefarious purpose. This
Jurisdiction is thus essentially different from that of judicial trials for the
commission of offences and also from preventive security proceedings in
criminal courts. both of which proceed on objective consideration of the
necessary facts for judicial determination by courts of law and justice functioning
according to the prescribed procedure. Merely because such jurisdiction of
courts can also be validly invoked does not by itself exclude the jurisdiction
of preventive detention under the Act. The earlier order. therefore, cannot be
described to be dither illegal or mala fide on this ground. Although the
petitioner's present detention is founded on the order dated June 25. 1972 the
earlier order was challenged with the sole object of showing that the present
detention is also mala fide because the authorities are determined to keep the
petitioner in custody irrespective of the existence or nonexistence of valid
grounds. We are not impressed by this submission and are unable to hold that
the circumstances in which the earlier order was made in any way suggest mala
fides on the part of the detaining authority 'in making the second order.
Regarding the second order also it has been
suggested that there is no imminent likelihood of the Petitioner acting in a
prejudicial manner and that his detention is thus an abuse or misuse (1) 
1 S.C.R. 313.
(3) A.I.R. 1972 S.C. 2256.
(2) A.LR. 1972 S.C. 1760.
274 of the power of detention conferred by
the Act. The scheme of our Constitution with respect to the fundamental right
of personal liberty and the protection guaranteed against arrest and detention
of the individual is intended to be real and effective, says the counsel, and
adds that preventive detention of a person for any reason short of imminent
likelihood of his acting in a prejudicial manner must be considered to be an
invasion of this right. Our constitution undoubtedly guarantees various
freedoms and personal liberty to all persons in our 'Republic. But the
constitutional guarantee of such freedoms and liberty is not meant to be abused
and misused so as to endanger and threaten the very foundation of the pattern
of our free society in which the guaranteed democratic freedoms and personal
liberty are designed to grow and flourish. 'Me larger interests of our
multireligious nation as a whole and the cause of preserving and securing to
every person the guaranteed freedoms peremptorily demand reasonable
restrictions on the prejudicial activities of individuals which undoubtedly
jeopardise the rightful freedoms of the rest of the society. These restrictions
within the constitutional limits have to be truly effective. If the detaining
authority is of opinion on grounds which are germane and relevant, that it is
necessary to detain a person from acting prejudicially as contemplated by s. 3
of the Act then it is not for this Court to consider objectively how imminent
is the likelihood ,of the detenu indulging in these activities. This submission
is thus unacceptable.
The next point urged is that the petitioner
had been served with the order of detention dated June 25, 1972 when he was in
jail and that such service is invalid rendering the petitioners detention void.
This submission is generally unacceptable. There is no legal bar in serving an
order of detention on a person who is in jail custody if he is likely to be
released soon thereafter and there is relevant material on which the detaining
authority is satisfied that if free, the person concerned is likely to indulge
in activities prejudicial to the security of the State or maintenance of public
order. 'The decision in Makhan Singh Tarsikka v. State of Punjab(1) does not
lay down the broad proposition canvassed. In that case which dealt with the
Defence of India Rules it was observed that r. 30(1) (b) of these Rules
postulates an order only where it is shown that but for the imposition of the
detention, the person concerned would be able to carry out prejudicial activity
,of the character specified in r. 30(1). On plain construction of that sub-rule
it was held that an order permitted by it could be served on a person who would
be free otherwise to carry out his prejudicial activities and such a freedom
could not be predicated ,of Makhan Singh Tarsikka, petitioner in that case. It
is noteworthy that the Court after referring with approval to its earlier (1)
A.I.R. 964 S.6.1120.
275 decision in Rameshwar Shaw v. District
Magistrate, Burdwan(1) observed :
"Besides when a person is in jail
custody and criminal proceedings are pending against him, the appropriate
authority may in a given case take the view that the criminal proceedings may
end very soon and may terminate in his acquittal. In such a case it would be
open to the appropriate authority to make an order of detention if the
requisite conditions of the rule or the section are specified and served on the
person concerned if and after he is acquitted in the said criminal
No doubt, this decision does suggest that the
order of detention can be served on the person concerned if and after he is
acquitted in the said criminal proceedings but in our view merely because the
person concerned has been served while in custody when it is expected that he
would soon be released that service cannot invalidate the order of detention.
The real hurdle in making an order of detention against a person already in custody
is based on the view that is futile to keep a person in dual custody under two
different orders but this objection cannot hold good if the earlier custody is
without doubt likely to cease very soon and the detention order is made merely
with the object of rendering it operative when the previous custody is about to
cease. It has also been pointed out that the grounds relate to a period more
than a year prior to the order of detention. This according to the submission
also renders the order mala fide. In our opinion, this contention is without
merit. It has to be borne, in mind that it is always the past conduct,
activities or the antecedent history of a person which the detaining authority
takes into account in making a detention order. No doubt the past conduct,
activities or antecedent history should ordinarily be proximate, in point of
time and should have a rational connection with the conclusion that the
detention of the person is necessary but it is for the detaining authority who
has to arrive at a subjective satisfaction in considering the past activities
and coming to his conclusion if on the the basis of those activities he is
satisfied that the activities of the person concerned are such that he is
likely to indulge in prejudicial activities necessitating his detention. As
observed in Ujjagar Singh v. State of Punjab(2) it is largely from prior events
or past conduct and antecedent history of a person showing tendencies or
inclinations of a person concerned that an inference can be drawn whether he is
likely even in the future to act in a manner prejudicial to the public order.
If the authority is satisfied that in view of the past conduct of the person
there is need for deten(1)  4 S.C.R. 921.
(2)  S.C.R. 757.
276 tion then it could not be said that the
order of detention is not justified.
The next point raised on behalf of the
petitioner is that the earlier order of detention was either revoked or had
expired with the result that unless the present detention pursuant to the order
dated June 25, 1972 is passed on fresh facts arising after the expiry or
revocation of the earlier order it must be held to be invalid. In support of
this submission reliance has been placed on S. 14 of the Act which reads 14 (1)
Without prejudice to the provisions of section 21 of the General Clauses Act,
1897 a detention order may, at any time, be revoked or modified(a)
notwithstanding that the order has been made by an officer mentioned in
sub-section (2) of section 3 by the State, Government to which that officer is
subordinate or by the Central Government.
(b) notwithstanding that the order has been
made by a State Government, by the Central Government.
(2) The revocation or expiry of a detention
order shall not bar the making of a fresh detention order under section 3
against the same person in any case where fresh facts have arisen after the
date of revocation or expiry on which the Central Government or a State
Government or an officer, as the case may be, is satisfied that such an order
should be made".
Support has also been sought from Hadibandgu
Das v. The District_Magistrate, Cuttack(1) which, was a case under the
Preventive Detention Act (IV of 1950). The language of S. 13(2) of that Act is
identical with that of S. 14(2) reproduced above. This decision was followed in
Kshetra Gogoi v. State of Assam(2) also a case under Act 4 of 1950.
In our opinion, this submission does possess
merit and deserves to be accepted. Section 14 speaks of revocation or expiry of
a detention order. The principle underlying this section has, its roots in the
vital importance attached to the fundamental right of personal liberty
guaranteed by our Constitution. The Act fixes the maximum period of detention
to be 12 months from the date of the detention with the proviso that the
appropriate Government can revoke or modify the detention order at any earlier
time : S. 13. It is to effectuate this restriction on the maximum period and to
ensure that it is not rendered nugatory or ineffective by resorting to the
camouflage of (1)  1 S.C.R. 227. (2)  2 S.C.R. 517.
277 making a fresh order operative soon after
the expiry of the period of detention, as also to minimise resort to detention
orders that s. 14 restricts the detention of a person on given set of facts to
the, original order and does not permit a fresh order to be made on the same
grounds which were in existence when the original order was made. The power of
preventive detention being an extraordinary power intended to be exercised only
in extraordinary emergent circumstances the legislative scheme of ss. 13 and 14
of the Act suggests that the detaining authority is expected to know and to
take into account all the existing grounds and make one order of detention
which must not go beyond the maximum period fixed. In the present case it is
not urged and indeed it is not possible to urge that after the actual expiry of
the original order of detention made by the District Magistrate which could
only last for 12 days in the absence of its approval by the State Government,
any fresh facts could arise for sustaining the fresh order of detention. The
submission on behalf of the State that the petitioner's activities are so
highly communal and prone to encourage violent communal activities that it was
considered absolutely necessary to detain him in the interest of security of
the State and maintenance of public order cannot prevail in face of the
statutory restrictions and the guaranteed constitutional right which is
available to all persons. The rule of law reigns supreme in this Republic and
no person on the soil of free India can be deprived of his personal liberty
without the authority of law. As observed by this Court in Manu Bhushan Roy
Prodhan v. State of West Bengal (1) :
"... The Act encroaches on the highly
cherished right of personal liberty by conferring on the executive
extraordinary power to detain persons without trial by coming to subjective
decisions. The detaining authority in exercising this power must act strictly
within the limitations this Act places on its power so that the guarantee of
personal liberty is not imperilled beyond what the Constitution and the law
The limited right of redress conferred on the
detenu under the law deserves to be construed with permissible liberality with
the provisions of the Act and the constitutional guarantee." On behalf of
the respondent reference was also made to Sampat Prakash v. State of Jammu
& Kashmir (2) dealing with detention under J. & K. Preventive Detention
Act (J. & K. Act 13 of 1964). Though in that Act there is a similar
provision [s. 14(2) of that Act] in the judgment there is no reference to that
section and it appears that no question similar to the oneraised" (1) W.I.
No. 252 of 1972 decided on October 31, 1972.
(2)  3 S.C.R. 574.
278 before us was urged and adjudicated upon
there. We have, therefore, no option but to order the petitioner's release
which we did ,on December 20, 1972. As the detention order is being quashed on
this ground we do not consider it necessary to express. any opinion on the
point that the detention order is vitiated because some of the grounds on which
it is based, though not of unessential nature, are vague.
Writ Petition No. 470 of 1972 Abdul Bari
Kairanvi, petitioner in this writ petition, an associate of Masood Alam
(Petitioner in W.P. No. 469 of 1972) both in the Youth Majlis and Muslim
Majlis, was arrested on June 3, 1972 when he had organised in the City of
Aligarh a procession in defiance of the order issued under S. 144, Cr. P.C. The
general ,atmosphere of communal tension prevailing in that city ultimately
culminated in the unfortunate communal riots on June 5, 1972. The arrest was
made under S. 188, I.P.C. and he was actually produced before the Additional
District Magistrate on the very day of his arrest. On June 14, 1972 an order
was made by the District Magistrate for the petitioner's detention under s. 3
(1) (a) (i) and (ii) of the Act as amended by the Defence of India Act 42 of
1971. The grounds of his detention which were duly served on him under s. 8 of
the Act read as under :"1. That you are a member of the Executive of the
Muslim Majlis. You are also an active member of Youth Majlis. The Youth Majlis
is being trained in the use of lathis, swords and knives as a fully militant
Organisation. You contribute and raise funds to illegally arm the Organisation.
You visited Pakistan in November, 1971 for arranging the transfer of funds
collected by Shri Masood Alam in Pakistan to Aligarh for use by Youth Majlis
for training volunteers in the use of arms and knives etc. You collected Rs.
700 for Youth Majlis from Varanasi, Pratapgarh and other places.
2.That you have extra territorial loyalties
and are therefore a threat to security of India which is evident from the
following instances :(a) That you on 1-4-1971 listened to Pakistan Radio and
propagated Pak policy towards Bangla Desh among the Muslims. You also
propagated that India engineered the trouble.
(b) On 19-10-71 you participated in private
meeting of commanders of Youth Majlis wherein you delivered a short speech that
India and Pakistan army were facing each other on the border and 279 there was
a great panic on the Indian side of the border. You also advised the commanders
of the Youth Majlis to remain vigilant and prepared for any situation that
might develop as a result of clash between India and Pakistan forces. You
criticised India for allegedly meddling into the private affairs of Pakistan.
You pointed out to them that Bengalees had been taught a lesson and the Hindus
in India would also share a similar fate if Pakistan forces invaded. You
accused police and army of favouring Hindus and stressed upon the commanders of
Youth Majlis to remain prepared.
(c) That you visited Pakistan in November,
1971 and returned from there on 30-11-1971 and propagated that concentration of
Pak army in Lahore sector was quite heavy and that real war would be fought in
(d) That you on 10-12-1971 briefed volunteers
of Youth Majlis that local Jan Sangh workers were trying to tease the Muslims
by making unbecoming remarks against Pakistan.
3.That you have been exciting communal
feelings among the Muslims in India and contributing to the communal
disturbances in the Aligarh City which is, evident from the following instances
:(a) That you on 15-10-71 attended the Executive Committee meeting of Youth
Majlis at Jama Masjid Upor Kot, Aligarh where you demanded that A.M.U.
(Amendment) Bill should guarantee minority character of the University.
(b) That you on 10-3-1972 in your speech in a
gathering of about one thousand Muslims at Jama Masjid in Upor Kot Aligarh City
alleged that the enemies of Islam had a tradition to make efforts to wipe out
Islamic religion and culture and at the present time also these enemies of
Islam were trying to become aggressive. You warned that in case the Muslims
culture was wiped out the Muslims will also be exterminated. You alleged that
there was systematic attempt to abolish Urdu. You exhorted the Muslims to be
united and firm.
(c) That on 19-5-1972 after a meeting at Jama
Masjid Upor Kot, Aligarh you distributed a 280 pamphlet captioned "Muslim
University ki mot ka Akhiri marhela. Ek Jan aur ek Awazbankar usko
bachyiye" issued in your name and the names of Dr. Ahsan Ahmad and others.
In the meeting in your short speech you pointed out that action, if delayed,
would fail to achieve any result even by any amount of sacrifice of bloodshed.
You also remarked "Hamari kom hamesha se talwar key saye me pali hai"
and as such no sacrifice was too grave for this occasion.
(d) That on 25-5-72 along with Dr. Ahsan
Ahmad attended a meeting of about 25 persons at the residence of Abdul Jalil
Ahsan Ahmad briefed the participants on the
agitation, formation of action Committee and collection of funds in connection
with the agitation against A.M.U. (Amendment) Bill, 1972.
4. In view of the above-mentioned grounds I
am satisfied that you are likely to act in a manner prejudicial to the security
of India, security of State and maintenance of public order and with a view to
preventing you from acting in a manner prejudicial to the security of India,
security of State and maintenance of public order it is necessary to detain
you." His detention was duly reported to the State Government on June 18,
1972 and the State Government gave its approval on June 25, 1972 which was duly
reported to the, Government of India on .June 29, 1972. His case was sent to
the Advisory Board on July 13, 1972 and the Board conveyed its decision on
August 18/21, 1972. His detention was confirmed on August 30, 1972. The
petitioner had made his representation on July 15/24, 1972 through the District
Magistrate who forwarded it to the Government on July 29, 1972. The Government
considered the representation on August 2, 1972 and the decision of the
Government was duly conveyed to him on August 5, 1972.
According to the petitioner's counsel Mr.
Bashir Ahmed, the grounds on which the petitioner's detention has been ordered
are irrelevant and, therefore, the detention is void.
Emphasis is laid ,on the submission that the
Youth Majlis and the Muslim Majlis are both organisations which do not advocate
communal conflict ,or disharmony and the object of both of them is social
service ,of the society. It is added that the Youth Majlis is a purely social
Organisation which is dedicated to the cause of the oppressed and the depressed
and its membership is open to all persons irrespective of their community or
religious creed. In support of this 281 contention the counsel sought to refer
to the printed constitution of the Organisation in Urdu which was not
permfitted, not being on the record and not being relevant to the limited scope
of enquiry in the present proceedings.
In our opinion none of the grounds on which
the petitioner's detention has been ordered can be said to be irrelevant.
The facts stated in the grounds have to be
accepted as correct and it is not open to this Court to enquiry into their
truth like a court of appeal. Writ proceedings cannot be treated as an appeal
in disguise. And then it has to be borne in mind that it was in November, 1971
that the petitioner is said to have gone to Pakistan (it is asserted in the
grounds that he visited Pakistan in November, 1971, and collected funds in that
country for the purpose of carrying on the activities of the Youth Majlis in
India), and he returned on November 30, 1971, just three days before the actual
war between India and Pakistan began. Judicial notice under s. 57 of the Indian
Evidence Act can be taken of the fact that the war between India and Pakistan
actually began on December 3, 1971 lasting for about a fortnight.
The petitioner has admitted his visit to
Pakistan in November, 1971, the reason given by him being that he had gone
there to, see his ailing relations without mentioning either their names and
addresses or the relationship.
According to the grounds, the. petitioner has
extra territorial loyalties manifested by his anti Indian and proPakistan
activities and also by inciting communal feelings amongst the Muslims during
the period of tension and conflict between India and Pakistan on the question
of Bangla Desh. The grounds further disclose, inter alia, (i) that the Youth
Majlis engages in training Muslims in India in the use of lathis, swords and
knives, and (ii) that the petitioner advised the commanders of the Youth Majlis
in October, 1971 to be vigilant and remain prepared for any situation that
might develop as a result of clash between India and Pakistan forces, at the
same time suggesting invasion of India by Pakistan forces. An attempt has
undoubtedly been made on behalf of the petitioner to show that the grounds on
which the District Magistrate felt satisfied are nonexistent but as observed
earlier it is not open to this Court to review and over-ride the subjective
opinion of the District Magistrate by going into the truth or otherwise of the
facts accented by him. The facts contained in the grounds reproduced earlier
seem to us to be clearly relevant for the purpose of forming an opinion that
they endanger both maintenance of public order and security of the State. It is
undeniable that hostility amongst the citizens founded on differences in
religious faiths Is a deadly poison for healthy existence and progress of a
secular, egalitarian society like ours. And when violence is advocated and
injected in such 'hostility, it is idle to suggest that such activities cannot
fall within the mischief designed to be Prevented by the Act. In our country
patriotism is not communal or religious and the Constitution 282 guarantees
equal freedom to all religious faiths without recognising the superior status
of any particular religion.
There is absolutely no discrimination on the
basis of religion and indeed in this Republic every citizen irrespective of his
religious faith can aspire to the highest office, if otherwise qualified. Here
people professing numerous different religious faiths and ideologies live in
perfect harmony with equal rights guaranteed by the Constitution. Articles 25
to 28 and Art.
30 in Part III accord to the Right to Freedom
of Religion and the Right of Minorities to Establish and Administer Educational
Institutions, the status of fundamental rights which can be enforced in the
highest courts in this country by appropriate means. Whenever, therefore, an
attempt is made to disturb the peaceful, tolerant and harmonious life of the
society by appealing to or inciting and inflaming religious passions and
prejudices and by fanning morbid fanaticism it must necessarily tend to disturb
the even tempo of the life of the society as a whole thereby prejudicially
threatening the maintenance of public order.
When such a climate in communal disharmony is
engendered for stimulating anti-Indian and pro-Pakistan feelings during the
period of extreme tension between the two countries then it must also tend to
seriously prejudice the maintenance of security of the State. Our attention has
been drawn to the pamphlet Annexure A to the writ petition for the purpose of
fortifying the argument that the agitation with respect to the Muslim
University at Aligarh in which ,the petitioner had undeniably taken part was a
non-violent movement. We do not thinkit is possible on the basis of this
document to decline to accept the opinion of the District Magistrate who had
sufficient material about the activities of the petitioner and of the
organisations to which he himself professes to belong. This pamphlet which
merely announced a meeting to be held on May 22, 1972 is, therefore, of little
The contention that the petitioner is a
Muslim theologist highly qualified in Muslim theology, assuming it to be true,
is also unhelpful to the petitioner as the impugned order is made on the basis
of his activities which are considered clearly prejudicial to ,the maintenance
of public order and security of State. His learning as a theologist is wholly
immaterial. It neither places him above the law nor does it displace or detract
from the opinion of the District Magistrate with respect to his activities and
On the contrary it has to be borne in mind
that when a person professing to be learned in religious theology encourages
defiance of law in the name of religion then ignorant and credulous people are
more likely to be misled and swayed by religious passions and sentiments. Such
activities naturally have greater potentiality for prejudicially threatening
the maintenance of public order.
283 According to the writ petition the
petitioner is an active member of the Muslim Majlis and also a member of the
Youth Majlis. He was arrested while defying the order promulgated under s. 144,
Cr. P.C. This had been preceded by the various Prejudicial activities in the
month of May, 1972 as stated in the grounds of detention and was followed two
days later by communal clashes. This agitation was carried an in connection
with a bill relating to the Aligarh Muslim University ignoring that the legal
position in respect of this University had been authoritatively settled by this
Court as far back as October, 1967 in S. Azeez Basha v.Union of India(';).
These activities clearly bring the petitioner's case within s. 3 of the Act,
being calculated to incite communal violence.
It has then been contended that some of the
grounds of detention conveyed to the petitioner are vague and, therefore, the
order of detention is liable to be struck down as invalid. Reference has in
this connection been made to the last two lines of ground no. 1 relating to the
collection of Rs. 700/ for Youth Majlis and to grounds nos.
2 and 3. The argument is wholly misconceived.
If ,the last two lines are read, as they should be, along with the remaining
contents of ground no. 1 it cannot be said that the petitioner was unable to
tender his explanation with respect to the allegation contained therein. Quite
clearly, the exact point of time and the people from whom small amounts were
collected could not possibly be stated with precision. Grounds nos. 2 and 3, as
is clear, contain precise details in the various clauses enumerated therein..
According to ground no. 2 the petitioner has
extraterritorial loyalties and, therefore, he is a threat to security of India
and this conclusion is arrived at on the basis of the instances stated in cls.
(a) to (d) which are precise and definite. Similarly, ground no. 3 says that
the petitioner has been exciting communal feelings among the Muslims in India
and contributing to communal disturbances in Aligarh city and this conclusion
is based on instances stated in cls. (a) to (d) which are precise and definite.
lie instances. under both these grounds are
relevant and germane. to the object which is sought to be achieved by s. 3 of
the Act for the purpose of detaining persons who are likely to act in a manner
prejudicial to the security of the State or maintenance of public order. The
(1) 1 S.C.R. 833.
3-L796Sup.C.I/73 284 decisions, relied upon
on behalf of the petitioner reported in Dwarka Dass Bhatia v. The State of
Jammu and Kashmir(1) and Pushkar Mukherjee & Ors. v. The State of West
Bengal (2) are. on the facts and circumstance of this, case of no assistance to
This writ petition accordingly fails and is
S.B.W. Petition dismissed.
(1)  S.C.R. 948. (2)  2 S.C.R.