Golam Hussain Alias Gama Vs. The
Commissioner of Police, Calcutta, & Ors [1974] INSC 58 (15 March 1974)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KHANNA, HANS RAJ
CITATION: 1974 AIR 1336 1974 SCR (3) 613 1974
SCC (4) 530
CITATOR INFO:
F 1975 SC 473 (2) RF 1975 SC 606 (4) F 1975
SC 623 (3) RF 1975 SC 919 (9) R 1986 SC2177 (33,41) RF 1987 SC1383 (9) R 1988
SC1256 (12) RF 1990 SC 225 (9)
ACT:
Maintenance of Internal Security Act,
1971--Ss. 3 (1) and 3 (2). If detention after discharge in criminal cases mala fide--Link
between criminal activity and' detention--Detention without duration if
invalid--Public disorder--If acts aimed at a single person can disturb public
order.
HEADNOTE:
Pursuant to an order of detention under s. 3
(1)(a) (ii) read with s. 3 (2) of the Maintenance of Internal Security Act,
1971 the petitioner was arrested for hurling, soda water bottles, brickbats and
bombs indiscriminately on a group of persons on different dates. The order of
detention said that if left free and unfettered the petitioner was likely to
continue to disturb maintenance of public disorder by acting, in a similar
manner. in an earlier criminal case the petitioner was discharged by the court
since no witness dared to depose against him in open court. Thereafter the
petitioner was detained under the Act.
In a petition under Art. 32 it was contended
: (1) that the detention was mala fide because the petitioner was detained
under the Act after his discharge by the court for want of evidence (2) that
there had been a long interval of nine months between the criminal incidents
and the detention order, (3) that the order of detention which did not specify
a period was violative of s. 12 of the Act and (4) that the detention was
founded on prevention of public disorder while the acts imputed to the
petitioner were aimed at a particular person, not the general public,
Dismissing the petition,
HELD : Merely because the detaining authority
had chosen to base the, order of detention on the discharge of the petitioner
by the court for want of evidence it cannot be held that the order was bad in
law. This branch of jurisprudence, as interpreted by this Court, has made it
futile for a detenu to urge that because the grounds of detention have been the
subject matter of criminal cases which have ended in discharge, therefore, the
order of detention was mala fide. The basic imperative of proof beyond
reasonable doubt does not apply to the subjective satisfaction component of
imprisonment for reasons of internal security. There may be extreme cases where
the court had held a criminal case to. be false and the detaining authority
with that judicial pronouncement before him, may not reasonably claim to be
satisfied about prospective prejudicial activities based on what a court has
found to be baseless. In the present case where the order of discharge was made
purely for want of evidence on the scope that witnesses were too afraid to
depose against a desperate character cannot come under the exceptions carved
out by the court to this category. [616C-F] .
(2) it is true that there must be a live link
between the grounds of criminal, activity alleged by the detaining authority
and the purpose of detention. This credible chain is snapped if there is too
long and unexplained an interval between, the offending acts and the order of
detention. If the detaining authority takes the chance of conviction and, when
the court verdict goes against it, falls back on its detention power to punish
one whom the court would not convict, it is an abuse and virtual nullification
of the judicial process. But if honestly finding a dangerous person getting
away with it by overawing witnesses or concealing the commission cleverly, an
authority thinks on the material before him that there is likelihood of and
need to interdict public disorder at his instance he may validly direct
detention. in the present case the acts were serious, being bomb hurling and
brickbat 'throwing in public places creating panic. Involvement of the
Petitioner was discovered only during the investigation of the offences. No
ground exists for dismissing this statement as sham or factitious.
[616G-H;617C] 614 M. S. Khan v. C. C. Bose,
A. 1. R. 1972 S.C. 1670, Ashim Kumar v. State of West Bengal, A.I.R. 1972 S.C.
2561 and Sahib Singh Dugal v. Union of' India, [1966] 1 S.C.R. 313, followed.
(3) The argument that detention without
defined duration is ipso jure invalid ,cannot be sustained. No responsible
government should or would be irresponsive to the claim of citizen's freedom.
[622F] Suna Ullah v. State of j & K, A.I.R, 1972 S.C. 2431, 2433,
Dattatreya Moreshwar Pangarkar v. State of Bombay, [1952] S.C.R. 612, S.
Krishnan v. The State of Madras, [1951] S.C.R. 621; 629, and Prabhu Dayal v. District
Magistrate, Kamrup, [1974] 1 S.C.C. 103; 114, referred to.
(4) The nature of the act, the circumstances
of its commission, the impact on people around and such like factors constitute
the pathology of public disorder. These acts cannot be isolated from their
public setting nor is it possible to analyse its molecules as in a laboratory
but take its total effect on the flow of orderly life. it may be a question of
the degree and quality of the activity of the sensitivity of the situation and
the psychic response of the involved people. To dissect further is to defeat
the purpose of social defence which is the paramount purpose of preventive
detention. [623B-C] Mohd. Subrati v. State of West Bengal, [1973] 3 S.C.C. 250;
256, referred to.
ORIGINAL JURISDICTION : Writ Petition No.
1977 of 1973.
Under Art. 32 of the Constitution of India
for issue of a writ in the nature of habeas corpus.
D. N. Mukherjee and M. M. Kshatriya, for the
petitioner.
p. K. Chatterjee and G. S. Chatterjee, for
the respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A few issues of some moment, in the context of civil liberties
have been argued in this application for habeas corpus by Shri Mukherjee as
amicus curiae. The facts are disquieting at least for the reason that the
petitioner an aged ailing man around 74, has been under detention since 1973
and, previous to it, had been facing a criminal prosecution which ended in a
discharge on the date the detention order was clamped down on him; and counsel
pressed the poignant circumstance that the ultimate order of Government dated
September 28, 1973 merely confirms the detention, being unlimited in duration
and 'unspeaking on the terminus ad quem for the incarceration.
The relevant facts may be stated before
discussing the highlights ,of the arguments. The Commissioner of Police,
Calcutta, passed the initial order of detention dated July 19, 1973 on the
petitioner, Golam Hussain alias Gama, under S. 3(1) (a) (ii) read with
sub-section (2) of the Maintenance of Internal Security Act, 1971 (Act 26 of
1971) (hereinafter referred to as 'the Act'). The grounds which induced the
detaining authority to pass the order were communicated the same day. They have
been set out by the State as annexure to the affidavit filed in opposition to
the petition and read thus On 8-10-72 at about 22-25 hrs., you along with your
associates Achche Lal Show of 1, Manickotolla Bazar Lane, Satya Narayan Jaiswal
of 123/2, Acharya Prafulla in Chandra Road, and others, all being armed with
bombs, sodawater bottles created a great disturbance of public order on Gouri
Sankar Lane in front of premises No. 8 by hurling bombs 615 indiscriminately
with a view to attack one Jiban Paul of 8. Gouri Shankar Lane and his group in
retaliation to an earlier quarrel that took place with the said Jiban Paul at
8, Gouri Sankar Lane with your associates Satya Narayan Jaiswal and others. The
incident terrorised the locality and threw out of gear the normal life stream
of the residents of the said locality amounting to police orde r.
2. On 9-11-72 sometimes between 04-45 hrs.
you along with your associates Ratish Pradhan
alias Laltu of 23/lA, Abinash Kaviraj St., Benode Kr. Jaiswal of 34B, Gulu
Ostagar Lane and other all being armed with brickbats, soda-water bottles,
bombs poles, created a great disturbance of public order on Gouri Sankar Lane
and Abinash Kaviraj' Street by hurling soda-water bottles, brickbats indiscriminately
with a view to overawe the organisers of the Kalipuja that took place in front
of 8 Gowi Sankar Lane and thereby to terrorise the locality. As a result the
lights of the above pujab pandals were damaged. This was in sequel to an
incident that took place earlier at about 04-30 hrs when your associates Benode
Kumar and others threw beer bottles at the Kalipuja pandal at 8, Gouri Sankar
Lane, where some females were then dancing, which was then protested by the
local people and the organisers of the said puja.
And if left free and unfettered you are
likely to continue to disturb manitenance of public order by acting in a
similar manner as aforesaid." As required by the statute, the fact of
detention was communicated to the State Government which in turn reported to
the Central Government. The case was placed before the Advisory Board on August
13, 1973 and when the representation of the detenu was, received it was duly
considered and negatived by the State Government which thereafter made it over
to the Advisory Board. After adverting to the facts, the Board advised
continuance of the detention on September 21, 1973. The consequential order
confirming the detention was made by the State Government on September 28, 1973
and communicated to the detenu by the middle of October, 1973. We see no
statutory shortcoming in the time sequence set out above. But other grounds of
attack have been levelled against the order which deserve a closer look.
Shri Mukherjee urged that although two
criminal cases were started in connection with the two incidents constituting
the grounds for the detention, the petitioner's name was not even mentioned in
the first information reports, and he was produced before the Magistrate only
on July 5, 1973, and so the order based on those accusations was too irrational
to be bona fide. The Commissioner of Police who passed the detention order has
stated in his affidavit that there were cases connected with ,he incidents of
October 8th and November 9th, but the detenu could not be arrested until July
4, 1973. It is not denied that the petitioner's name was not in the first
information 616 report, but he was apprehended later on the basis of evidence
gathered during the investigation of the criminal case. The commissioner admits
that the detenu was discharged by the, Court "as no witness dared to
depose against the detenu in open court." According to him the said order
of discharge was made on the prayer of the police on July 19, 1973, and
thereafter the petitioner was Preventively detained. Could such an order be
castigated as malafide and oblique resort to the inscrutable order of detention
when the prospects in the criminal case became bleak ? This charge has been
repudiated by the Commissioner on oath and we are not able to hold with the petitioner
that merely because the detaining authority has chosen to pass the order on the
discharge of the petitioner by the court for want of evidence, the order is bad
in law. , The branch of jurisprudence bearing on prohibitory detention has been
crystallised by now and it is no longer a valid contention, that because the
accused has been discharged in a criminal case the ground of charge cannot be
relied upon by the appropriate authority for passing an order of detention.
The former relates to the punitive branch of
the criminal law and relates to the past commission, the latter to the
preventive branch of social defence and protects the community from future
injury. Whether we like it or not, this branch of jurisprudence, as interpreted
by this Court has made it futile for a detenu to urge that because the grounds
of detention have been the subject matter of criminal cases which have ended in
discharge, therefore, the order of detention is malafide. The basic imperative
of proof beyond reasonable doubt does not apply to the 'subjective
satisfaction' component, of imprisonment for reasons of internal security. To
quarrel with such a proposition is to challenge the wisdom of Parliament. Of
course, we can visualise extreme cases where a court has held a criminal case
to be false and a detaining Authority with that judicial pronouncement before
him may not reasonably claim to be satisfied about prospective prejudicial
activities based on what a court has found to be baseless. But the present case
where the order of discharge is made purely for want of evidence on the score
that witnesses were too afraid to depose against a desperate character cannot
come under this exceptional category.
Another submission, equally an exercise in
futility, made before us is that there has been a long interval of nine months
between the criminal incidents of October and November, 1972 and the detention
order of July, 1973.
Counsel hopefully relied on recent decision
of this Court in Lakshman Khatik v. State of West Bengal (1) and an earlier
decision in Rameshwar Shah v. District Magistrate Burdwan(2). It is true that
there must be a live link between the grounds of criminal activity alleged by
the detaining authority and the purpose of detention, namely, inhibition of
prejudicial activity of the species specified in the statute. This credible
chain is snapped if there is too long and unexplained an interval between the
Offending acts and the order of detention. Such is the ratio of proximity in
Lakshman Khatik(l). No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely because long ago the
detenu had (1) Writ Petit Judgment on 26-2-74.
(2) [1964] 4 S.C.R. 921.
617 done something evil. To rule otherwise is
to sanction a simulacrum of a statutory requirement. But no mechanical test by
counting the months of the interval is sound. It all depends on the nature of
the acts relied on, grave and determined or less serious and corrigible, on the
length of the gap, short or long on the reason for the delay in taking
preventive action, like information of participation being available only in
the course of an investigation. We have to investigate whether the causal
connection has been broken in the circumstances of each case.
If the detaining authority takes the chance
of conviction and, when the court verdict goes against it, falls back on its
detention power to punish one whom the court would not convict, it is an abuse
and virtual nullification of the judicial process. But if honestly finding a
dangerous person getting away with it by overawing witnesses or concealing the
commission cleverly an authority thinks on the material before him that there
is likelihood of and need to interdict public disorder at his instance he may
validly direct detention. The distinction is fine but real. In the present
case, the acts ere serious, being bomb hurling and brick-bat throwing in public
places creating. panic. The involvement of the petitioner is discovered only
during the investigation of the offences. The witnesses are scared away from
deposing. The Commissioner swears that in these special circumstances he did
form the satisfaction requisite for ordering preventive detention, No ground
exists for dismissing this statement as sham or factitious. It is one thing to
say that a more subjective satisfaction is sufficient to deprive a person of a
fundamental freedom. it is another to reject that satisfaction as specious and
nonexistent. Parliament makes the law and is responsible for it; the court only
applies it, as it must. We have, therefore, to reject the plea that because the
criminal case has failed the detention must be bad. M. S. Khan v. C. C. Bose,
(1) Ashim Kumar v. State of West Bengal(2), and Sahib Singh Dugal v. Union of
India(3) are but three among many cases taking this view. We follow these
precedents.
The next serious contention of Shri
Chatterjee is that an order of detention which does not specify a period is
violative of s. 12 of the Act. We may reproduce the relevant provisions which
are of ancient vintage, being wholly or substantially in pari materia with
earlier corresponding preventive detention sections. Nor is the position of law
can vassed for res integra. Section l2 and l3 of the Maintenance of Internal
Security Act, 1971, as amended, read as follows :
"12(1)ln any case where the Advisory
Board has reported that there is in its opinion sufficient cause for the
detention of a person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such period as it
thinks fit.
(2) (1) A.I.R. 1972 S.C. 1670.
(2) A.I.R. 1972 S.C. 2561.
(3) [1966] 1 S.C.R. 313.
618
13. The maximum period for which any person
may be detained in pursuance of any detention order which has been confirmed
under section 12 shall be twelve months from the date of detention, or until
the expiry of the Defence of India Act, 1971 whichever is later ;
Provided that nothing contained in this
section shall affect the power of the appropriate Government to revoke or
modify the detention order at any earlier time." Section 1(3) of the
Defence of India Act, 1971 laid down the duration of that Act and said that
that Act shall remain in force for the duration of the proclamation of
emergency and a period of six months thereafter. Section 13 of the MISA, as
amended, thus provided that the maximum period of detention under the Act shall
be twelve months from the date of detention or until the expiry of a period of
six months after the cessation of the proclamation of emergency, whichever is
later.
The Court recently dismissed a similar
argument in these words in Suna Ullah v. State of J & K (1) :
"It is urged that the failure of the
State Government to specify the period of detention introduces an infirmity in
the detention of the petitioner. This contention, in our opinion, is without
any force. According to sub-section (1) of Section 12 of the Act, in any case
where the Advisory Board has reported that there is, in its opinion, sufficient
cause for the detention of a person, the Government may confirm the detention
order and continue the detention of the person concerned for such period as it
thinks fit. Section 13 of the Act specifies the maximum period of detention.
According to that section the maximum period for which a person may be detained
in pursuance of any detention order, which has been confirmed under Section 12,
shall be two years from the date of detention.
It is further provided that nothing in the
section shall affect the power of the Government to revoke or modify the
detention order at any earlier time. It is, in our opinion, difficult to infer
from the language of Section 12 of the Act that the State Government while
confirming the detention order should also specify the period of detention. All
that the section requires is that, if the Advisory Board has reported that
there is, in its opinion, sufficient cause for the detention of the person, the
Government may confirm the detention order. There is nothing in the section
which enjoins upon the Government to specify the period of detention order. The
concluding words of sub-section (1) of Section 12, according to which the
Government may continue the detention of the person concerned for such period
as it thinks fit, pertain to and embody the consequences of the confirmation of
the detention order. It is, however, manifest that the period for which a
person can be detained after the confirmation of the detention order is subject
to the limit of two years, which is the maximum period of detention for which a
person can be detained vide section 13 of the Act.
(1) A.I.R. 1972 S.C. 2431; 2433.
619 Apart from the above, we are of the
opinion that it is not always practicable and feasible for the State Government
at the time of confirming the detention order to specify the period of
detention. The continued detention of the detenu, subject to the maximum period
prescribed by the Act, depends upon a variety of factors and the State Government
would have to take into account all the circumstances including fresh
developments and subsequent events in deciding whether to keep the detenu in
detention for the maximum period or to release him earlier. It has accordingly
been provided in sub-section (2) of Section 13 of the Act that the State
Government would have the power to revoke or modify the detention order at any
time earlier than the expiry of two years from the date of detention." The
leading case, if we may say so, is Dattatraya Moreshwar Pangarkar v. State of
Bombay(l). The majority held that an order of detention under a substantially
like provision was not invalid merely because the order did not contain the
period of imprisonment. Mahajan, J., as he then was, held a contrary view. But even
the majority was split on their construction of the section. Das, J., as he
then was, read the section to imply no obligation towrite into the order the
duration, even though it may be desirable. The learned Judge observed :
"It is said that the section should be
construed irrespective Of whether it occurs in a temporary statute or a
permanent one, and it is urged that if the statute were a permanent one the
section on the aforesaid interpretation, would have permitted an indefinite
detention. The answer is given by Mahajan J., in the following passage in his
judgment in S. Krishnan v The State of Madras (supra) at page 639 with which
concurred(2) "It may be pointed out that Parliament may well have thought
that it was unnecessary to fix any maximum period of detention in the new
statute which was of a temporary nature and whose own tenure of life was
limited to one year. Such temporary statutes cease to have any effect after
they expire they automatically come to an end at the expiry of the period for
which they have been enacted and nothing further can be done under them.
The detention of the petitioners therefore is
bound to come to an end auto matically with the life of the statute and in
these circumstances Parliament may well have thought that it would be wholly
unnecessary to legislate and provide a maximum period of detention for those
detained under this law." For all I know, such drastic and extensive power
to continue the detention as long as it may think fit may not be given by
Parliament to the executive Government in a permanent statute.
(1) (1952) S.C.R. 612.
(2) [1951] S.C.R. 621; 629.
620 But if it does think fit to do so, it
will not be for the Court to question the knowledge, wisdom or patriotism of
the Legislature and to permit its dislike for the policy of the law to prevail
over the plain meaning of the language used by the Legislature. Apart from this
consideration, there is a period specified in the sub-section itself, for as
soon as the appropriate Government will cease to think fit to continue the
detention it will revoke the detention order under section 13 and the period of
detention will automatically come to an end." "If the specification
of the period of detention is 'not at all sacrosanct and the appropriate Government
may nevertheless continue the detention as long as it thinks fit to do so, why
is the specification of a period to be regarded as virtually or at all
necessary? So far as the detenu is concerned, his detention will not be any
more definite and less irksome if it is open to the appropriate Government to
continue the detention by an indefinite number of orders made from time to time
until the expiry of the Act itself by afflux of time in the case of a temporary
statute or by its repeal in the case of a permanent Act. It is said that if we
insist on a specification of a definite period when the confirmatory order is
in a deand there after each time the period of detention is extended then the
appropriate Government will have to apply its mind to the case of the detenu
before it will make an order for further continuation of the detention, but
that if we say that no time need be specified, the appropriate Government will
lose sight of the case and the detenu will be detained indefinitely. I do not
see why we should impute such dereliction of duty to the appropriate
Government', but even if we do so and insist on the specification of the period
of detention we shall perhaps be driving the appropriate Government to fix the
longest permissible period of detention ending with the expiry of the Act
itself and then to lose sight of the case of the detenu. That, I apprehend,
will do no good to the detenu." "In any event, the considerations of
hardship urged upon us may make it desirable that a period of detention should
be fixed but this cannot alter the plain meaning of the language of the section
:
Patanjali Sastri, C. J., concurred. However,
Mukherjea J. struck a different note "The question now is whether the
omission to state the period of further detention while confirming the
detention order under section II (1) of the Preventive Detention Act makes the
detention illegal ? The point is not free from doubt, but having regard to the
fact that the new Preventive Detention Act is a temporary statute which was to
be in force only up to the 621 1st of April, 1952, and. has only been recently
extended to a further period of six months and no detention under the Act can
continue after the date of expiry of the Act, I am in-.limed to hold that
non-specification of the further period in an order under section 11(1) of the
Act does not make the order of detention a nullity. If no period is mentioned,
the order might be taken to imply that it would continue upto the date of the
expiration of the Act itself when all detentions made under it would
automatically come to an end. Of course, the appropriate Government is always
at liberty to terminate the order of detention earlier, if it considers proper,
in exercise of its general powers under section 13 of the Act," 'It is
perfectly true that an order for detention for an indefinite period is
repugnant to all notions of democracy and individual liberty, but the
indefiniteness in the case of an order made under section 11(1) of the
Preventive Detention Act is in a way cured by the fact that there is a limit
set to the duration of the Act itself, which automatically prescribes a limit
of time beyond which the order cannot operate. In my opinion, section II (1) of
the Preventive Detention Act does contemplate that a period should be mentioned
during which the further detention of the detwnu is to continue and the
Government should see that no omission occurs in this respect, but I am unable
to ho ld that this omission alone would make the order a nullity which will
justify us in releasing the detenu." Chandrasekhara Aiyar J. concurred.
The undercurrent of judicial unease at loss
or citizen's liberty because the Executive subjectively opined that way is
evident in the pages of the report, but the brooding feeling that the
preventive detention legislation was a short-lived statute and all imprisonment
without trial would terminate at a near date was writ large in all the
opinions.
After all civil liberty ordinarily ends where
detention without trial begins and commitment to the rule of law receives a
rude shock where a permanent statute authorises long term gaol confinement.
That is why courts have been strict even on procedural steps. Mathew J.
recently observed in Prabhu Dayal v. District Magistrate, Kamrup(l):
"The facts of the case might induce
mournful reflection how an honest attempt by an authority charged with the duty
of taking prophylactic measure to secure the maintenance of supplies and
services essential to the community has been frustrated by what is popularly
called a technical error. We say and that we think it is necessary to repeat,
that the gravity of the evil to the community resulting from anti-social
activities can never furnish an adequate reason for invading the personal
liberty of a citizen, except in accordance with the procedure established by
the Constitution and the laws. The history of personal liberty is-largely the
history of insistence on observance of procedure'.
(1) W. P. No, 1496 of 1973; judgment dated
October 11, 1973.-[1974] I SCC 103, 114.
622 Observance of procedure has been the
bastion against wanton assaults on personal liberty over the years. Under our
Constitution the only guarantee of personal liberty for a person is that he
shall not be deprived of it except in accordance with the procedure established
bylaw. The need today for maintenance of supplies and services essential to the
community cannot be over-emphasized.
There will be no social security without
maintenance of adequate supplies and services essential to the community. But
social security is not the only goal of good society.
There are other values in a society. Our
country is taking singular pride in the democratic ideals in personal liberty.
It would indeed be ironic if, in the name of social security, we would sanction
the subversion of this liberty. We do not pause to consider whether social
security is more precious than personal liberty in the scale of values. For,
any judgment as regards that would be but a value judgment on which opinions
might differ. But whatever be its impact on the maintenance of supplies and
services essential to the community, when a certain procedure is prescribed by
the Constitution or the laws for depriving a citizen of his personal liberty,
we think it, our duty to see that that procedure is rigorously observed,
however strange this might sound to some ears." The basic feature of the
Act as distinguished from its predecessor is that it is no longer a temporary
law and even the duration of the detention can be distant and considerable. We
have misgivings about these anti-personal freedom facets but regard hopefully
the presence and use of the power to revoke the detention on a review at any
time.
Moreover there is no reason to think that
this extraordinary power will be used indiscriminately or inordinately by a
democratic government. A tenable interpretation that a detention order of
prolonged and unspecified duration has to be abandoned for the time not merely
because of the pressure of precedents but because we are assured by the State's
counsel that the fulfilment of the imperative obligation of the State to review
from time to time the changing social situation and the individuals' criminal
potential tipping the scales in favour of enlargement of the detenu is taking
place. No responsible government should or would be irresponsive to the claim
of citizen's freedom and the argument that detention without defined duration
is ipso jure invalid cannot be sustained.
Shri Chatterjee took up the further position
that the detention in the case on hand was founded on prevention of public
disorder while the acts imputed to the petitioner ex facie were aimed at a
particular person and not the public generally. Lohia's(l) case and other
rulings were said to reinforce this stance. The law is plain and the decided
cases are concordant. A criminal act hitting a private target such as indecent
assult of a woman or slapping a neighbour or knocking down a pedestrian while
driving may not shake up public order. But (1) [1966] 1 S.C.R. 769.
623 a drunk with a drawn knife chasing a
woman in a public street and all women running in panic, a Hindu or Muslim in a
crowded place at a time of communal tension throwing a bomb at a personal enemy
of the other religion and the people all scared fleeing the area, a striking
worker armed with a dagger stabbing a blackleg during a bitter strike spreading
terror-these are invasions of public order although the motivation may be
against a particular private individual. The nature of the act the
circumstances of its commission the impact on people around and such like
factors constitute the pathology of public disorder. We cannot isolate the act
from its public setting or analyse its molecules as in a laboratory but take
its total effect on the flow of orderly life. It may be a question of the degree
and quality of the activity of the sensitivity of the situation and the psychic
response of the involved people.
To dissect further is to defeat the purpose
of social defence which is the paramount purpose of preventive detention.
Another argument, rather flimsy, was made
that a corrigendum reading 'public order' in the place of 'police order' was
not communicated to the detenu. It is not so and merits no consideration. One
or two other points, too trivial to be seriously noticed were also mentioned but
we ignore them.
Basically we must realise the unpleasant
truth that the new jurisdiction of preventive detention by executive fiat
founded on subjective satisfaction and jejune judicial protection is an erosion
of a great right. We may repeat what this Court in a different context recently
observed in Mohd. Subrati v. State of West Bengal(1) :
"It must be remembered that the personal
liberty of an individual has been given an honoured place in the fundamental
rights which our Constitution has jealously protected against illegal and
arbitrary deprivation and that this Court has been entrusted with a duty and
invested with a power to enforce that fundamental right." The seriousness
of the step must be appreciated by Government and continuous check-up on the
need to prolong the prison life of the citizen made. The final cure for
prejudicial activities threatening the survival of the community is not
executive shut-up of all suspects in prison for how long one is kept guessing.
Such a strategy may alienate and embitter men who should be weaned away and won
over. In the present case a septuagenarian allegedly sickly is confined in jail
for an unspecified period. It may well be that his private enemy on whom he
threw a bomb is not there at all. It may also be that the detenu has altogether
changed his outlook as many well-known terrorists have turned marvels of
saintliness. History will, we hope, serve the Administration as reminder of
unwitting misuse while exercising near-absolute power.
We dismiss the petition.
P.B.R.
(1) [1973] 3 S.C.C. 250; 256 Petition
dismissed.
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