G. M. Shah Vs. State of Jammu &
Kashmir [1979] INSC 224 (30 October 1979)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) TULZAPURKAR, V.D.
CITATION: 1980 AIR 494 1980 SCR (1)1104 1980
SCC (1) 132
ACT:
Jammu and Kashmir Public Safety Act, 1978
Sections 8(2) and 8(3)-Scope of-"Law and Order," "Public
Order," "Security of the State"- Meaning of.
HEADNOTE:
The petitioner's son (the detenu) was
detained under section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 by
an order of the District Magistrate, Anantnag, Sections 8(1)(a)(1) and 8(2)2 of
the Act state that the Government or the District Magistrate may, if satisfied
with respect to any person that with a view to preventing him from acting in
any manner prejudicial to the security of the State or the maintenance of the
public order, make an order directing that such person be detained.
The detenu was informed that the order of
detention had been passed with a view to preventing him from acting in any
manner prejudicial to "the maintenance of public order". The grounds
of detention amongst others stated that the detenu had (i) indulged in
subversive activities (ii) organised the burning of religious places to create
chaos in the State (iii) disturbed the public order (iv) tried to elicit public
opinion in favour of a person sentenced to death and that his remaining at
large was prejudicial to the maintenance of public order and also the
"security of the State".
The petitioner challenged the grounds of
detention as vague.
Allowing the petition under Article 32 of the
Constitution and directing the release of the detenu forthwith.
HELD: An attempt on the part of any citizen
to elicit public opinion in favour of a person who has been sentenced to death
and to save him from the gallows cannot be considered as acting in any manner
prejudicial to the security of the State because it cannot be considered as an
attempt to overthrow or overawe the Government established by law in the State.
The fact that the detenu had sent hand- bills and booklets to arouse the
sentiments of the people against the proposed execution of Z. A. Bhutto cannot
be considered as an act prejudicial to the security of the State because the
State of Jammu and Kashmir had nothing to do with the proposed execution. The
other grounds are also vague in so far as the question of security of the State
is concerned. [1111 B-E] A combined reading of the order of detention and the
grounds furnished to the detenu shows that at the time when the order was made,
the District Magistrate either had no material relevant to the security of the
State on which he could act or even if he had information of those grounds, he
did not propose to act on it. He, however, tried to support the order of
detention by stating in the course of the grounds that by the detenu remaining
at large, the security of the State was likely to be prejudiced. [1111 G-H]
1105 The expressions "law and order", "public order" and
"security of the State" are distinct concepts though now always separate.
Whereas every breach of peace may amount to disturbance of law and order, every
such breach does not amount to disturbance of public order and every public
disorder may not prejudicially affect the "security of the State."
[1112 A-B] Romesh Thapper v. The State of Madras, [1950] S.C.R.
594 at p. 600 applied.
An act may affect law and order but not
public order just as an act may affect public order but not security of State.
It is for this reason that the Act defines the expressions "acting in any
manner prejudicial to the security of the State" and "acting in any
manner prejudicial to the maintenance of public order' separately. An order of
detention made either on the basis that the detaining authority is satisfied
that the person against whom the order is being made is acting in any manner
prejudicial to the security of the State or on the basis that he is satisfied
that such person is acting in any manner prejudicial to the maintenance of
public order but which is attempted to be supported by placing reliance on both
the bases in the grounds furnished to the detenu has to be held to an illegal
one. [1113 C-D] Dr. Ram Manohar Lohia v. State of Bihar & Others, [1966] 1
S.C.R. 709. Bhupal Chandra Ghosh v. Arif Ali & Others [1974] 2 S.C.R. 277
and Satya Brata Ghose v. Arif Ali & ORIGINAL JURISDICTION: Writ Petition
No. 1125 of 1979 (Under Article 32 of the Constitution) M. K. Ramamurthy and R.
C. Pathak for the Petitioner.
K.K. Venugopal, Addl. Solicitor General, and
Altaf Ahmed for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J-At the conclusion of the hearing of the above petition on
October 24, 1979, we made the following order:- "The detenu Shabir Ahmed
Shah who has been detained by the order dated the 23nd May, 1979 of the
District Magistrate, Anantnag is directed to be released forthwith. Reasons
would follow." The reasons in support of the above order are given below:-
The above petition under Article 32 of the Constitution is filed by the
petitioner requesting this Court to quash the order of detention bearing No.
299-304/ST dated May 23, 1979 passed by the District Magistrate, Anantnag in
the State of Jammu & Kashmir under section 8(2) of the Jammu & Kashmir
Public Safety Act, 1978 (Act No. VI of 1978) (hereinafter referred to as 'the Act')
directing the detention 1106 of his (petitioner's) son, Shabir Ahmed Shah
(hereinafter referred to as 'the detenu'). The relevant part of the order of
detention reads:
"Whereas I, Omar Jan, District
Magistrate, Anantnag, am satisfied that with a view to preventing Shri Shabir
Ahmed Shah s/o Ghulam Mohammad Shah r/o Kadipora, Anantnag, from acting in any
manner prejudicial to the maintenance of public order, it is necessary so to
do;
Now, therefore, in exercise of the powers
conferred by section 8 (2) of the Jammu and Kashmir Public Safety Act, 1978
(Act No. VI of 1978), I, Omar Jan, District Magistrate, Anantnag hereby direct
that the said Shri Shabir Ahmed Shah be detained in Central Jail, Srinagar.
Sd/- (Omar Jan) District Magistrate,
Anantnag".
The detenu was informed in pursuance of
section 13 of the Act that his detention had been ordered on the following
grounds:- "1. You originally belonged to Young Man's LEAGUE (Hamid group)
which was an anti-national and pro-Pak organization of youngmen. You along with
your erstwhile associates were responsible for creating subversion and danger
to the maintenance of public order by organizing antinational demonstrations
and protests.
2. Later in the year 1975 when the Peoples'
League was formed with the avowed object of challenging the accession of the
State of India and also for furthering the cause and interest of Pakistan in
the State, you joined the party as an active member. You are currently the
General Secretary of the Peoples' League. You and Your party have shown open
sympathy and have tried to elicit public opinion in favour of Mohammad Maqbool
Bhat, a die-hard pro-Pak subversive element who has been sentenced to death on
two occasions for murder, espionage and sabotage and is currently awaiting
execution. Pamphlets and posters have been issued by the Peoples' League in
support of Mohammad Maqbool Bhat.
3. In January and February, 1970 you joined
subversive elements of Sopore area and organized the burning of religious
places in order to create chaos in the State. The conspiracy was, however,
unearthed by Baramulla Police in time before much damage was done. You were
arrested in Case FIR No. 38/79 u/s 436 RPC P/S Sopore registered in this
connection.
4. Much before the execution of Mr. Z. A.
Bhutto in Pakistan, you and your party sent hand-bills and booklets to arouse
the sentiments of the people against the State Govt. You along with your party
members moved secretly to maintain contacts with disgruntled and undesirable
elements in the valley and to arouse their base sentiments in this connection
and context.
5. In the third week of March, 1979, when
some unemployed youth started hunger strike at Lal Chowk, Anantnag, you lent
support to the CPI ML and other parties who were out to create disturbances and
to incite the youth to resort to violence and disorder.
6. On 29-3-1979 you along with your
colleagues held a meeting and decided to disturb public order in Anantnag town
in the context of pro-Bhutto sentiments and demonstrations the next day.
7. Consequently on 30-3-1979 you along with
your associates moved stealthily to warn the shopkeepers to close their shops.
You also incited the people to put road blocks and stop traffic. You and your
associates organized a strike in Anantnag College when it opened on 30th. Later
in the day you along with your associates incited youths to resort to violence
and create disorder. Consequently a lot of violence including murderous assault
on the Police and the Magistracy took place in Anantnag town in which many
officials were seriously injured. A case FIR No. 98/79 u/s
302/148/336/332/149/120-B RPC was registered. You went underground and could
not be arrested for quite some time but you were arrested in the case later.
You are presently on bail in this case. On 7-4-1979 when normalcy was being
restored in Anantnag town and shops were being opened, you along with your
associates appeared near Lal Chowk and threatened shop-keepers to close shops.
Their shouting and running had the effect of creating tension in the 1108 town and
many shops were closed. Police efforts to arrest you could not succeed as you
ran away in the by- lanes and later went underground.
8. More recently you have been collaborating
with antinational, pro-Pak elements who come to hold secret talks and links
with you. You are a dangerous and disparate character out to create chaos,
disorder, subversion and the like to achieve your ends. Your remaining at large
is prejudicial to the maintenance of public order and also to the security of
the State. I am convinced that unless you are detained there is every
likelihood that you will continue to create confusion in public minds and
instigate people to lawlessness and disturbance of public peace and
tranquility." (The paragraphs are numbered by us for the purpose of
convenience).
It may be noted that whereas the order of
detention stated that it had been passed with a view to preventing the detenu
"from acting in any manner prejudicial to the maintenance of public
order", in the last paragraph of the grounds furnished to the detenu, it
was stated that "your remaining at large is prejudicial to the maintenance
of public order and also to the security of the State". The relevant part
of section 8 of the Act under which the order of detention is passed reads:
"8. Detention of certain persons.-(1)
The Government may- (a) if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial to- (i) the
security of the State or the maintenance of the public order, or (ii) the maintenance
of supplies and services essential to the community; or.
(b) .... ... ... ... ... ... ... ..
it is necessary so to do, make an order
directing that such person be detained.
1109 (2) Any of the following officers
namely:- (i) Divisional Commissioners, (ii) District Magistrates, may, if
satisfied as provided in sub-clauses (i) and (ii) of clause (a) of sub-section
(1), exercise the powers conferred by the said sub-section.
(3) For the purpose of sub-section (1),- (a)
"acting in any manner prejudicial to the security of the State" means
making preparations for using, or attempting to use, or using or instigating,
inciting, provoking or otherwise abetting the use of force, to overthrow or
overawe the Government established by law in the State;
(b) "acting in any manner prejudicial to
the maintenance of public order" means- (i) promoting, propagating or
attempting to create, feelings of enmity or hatred or disharmony on grounds of
religion, race, caste, community, or region;
(ii) making preparations for using, or
attempting to use, or using, or instigating, inciting, provoking, otherwise
abetting the use of force where such preparation, using, attempting,
instigating, inciting, provoking or abetting, disturbs or is likely to disturb
public order;
(iii) attempting to commit, or committing, or
instigating, inciting, provoking or otherwise abetting the commission of,
mischief within the meaning of section 425 of the Ranbir Penal Code where the
commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or
instigating, inciting, provoking or otherwise abetting the commission of an
offence punishable with death or imprisonment for life or imprisonment for a
term extending to seven years or more, where the commission of such offence
disturbs, or is likely to disturb public order." It is seen from section
8(1) (a) (i) and section 8(2) of the Act extracted above that the Government or
the District Magistrate may, if satisfied with respect to any person that with
a view to preventing him 1110 from acting in any manner prejudicial to the
security of the State or the maintenance of the public order, make an order
directing that such person be detained. The expression "acting in any
manner prejudicial to the security of the State" is defined in clause (a)
of subsection (3) of section 8 of the Act as making preparation for using, or
attempting to use, or using or instigating, inciting, provoking or otherwise
abetting the use of force to overthrow or overawe the Government established by
law in the State. Clause (b) of section 8(3) of the Act defines the expression
"acting in any manner prejudicial to the maintenance of public
order".
The distinction between the two expressions
lies in the fact that while in the case of the former, the object of making
preparation or instigating or abetting the use of force etc.
should be with a view to overthrow or overawe
"the Government established by law in the State", in the case of the
latter, the object of the acts mentioned therein should be disturbance of
public order.
As already mentioned, while the order of
detention states that it was being made with a view to preventing the detenu
from acting in any manner prejudicial to the maintenance of public order, in
the grounds disclosed to him, it had been stated that the detenu's remaining at
large was prejudicial to the maintenance of public order and also to the
security of the State. We shall now briefly refer to the nature of the grounds
furnished to the detenu. First we shall deal with paragraphs (1), (3) and (5)
to (7) of the grounds. In paragraph (1) of the grounds, it is stated that the
detenu along with his erstwhile associates was responsible for creating
subversion and danger to the maintenance of public order by organizing
anti-national demonstrations and protests. In paragraph (3) of the grounds, it
is stated that in January and February, 1979, the detenu had joined subversive
elements of Sopore area and organized the burning of religious places in order
to create chaos in the State. In paragraph (5) of the grounds, it is stated
that in the third week of March, 1979, the detenu had lent support to the
Communist Party of India (ML) and other parties who were out to create
disturbances and to incite the youth to resort to violence and disorder when
some unemployed youth started hunger strike at Lal Chowk, Anantnag. In
paragraph (6) of the grounds, it is stated that on March 29, 1979, the detenu
had along with his colleagues held a meeting and decided to disturb public
order in Anantnag town. In paragraph (7) of the grounds, there is a reference
to the detenu along with his associates inciting the youth to resort to
violence and create disorder. It is thus clear that paragraphs (1), (3) and (5)
to (7) of the grounds, there is no reference to any attempt made by the detenu
to use force to overthrow or overawe the Government established by 1111 law in
the State. Paragraphs (2), (4) and (8) of the grounds are also in no way
different. In paragraph (2) of the grounds, although there is reference to the
detenu joining Peoples' League, which had been formed with an avowed object of
challenging the accession of the State of Jammu & Kashmir to India and also
for furthering the cause and interest of Pakistan in the State, the act attributed
to the detenu is that he had tried to elicit public opinion in favour of
Mohammad Maqbool Bhat who had been sentenced to death. An attempt on the part
of any citizen to elicit public opinion in favour of a person who had been
sentenced to death and to save him from the gallows cannot be considered as
acting in any manner prejudicial to the security of the State because it cannot
be considered as an attempt to overthrow or overawe the Government established
by law in the State.
Similarly the act attributed to the detenu in
paragraph (4) of the grounds cannot be considered as an act prejudicial to the
security of the State as what is alleged therein is that much before the
execution of Mr. Z. A. Bhutto in Pakistan, the detenu had sent hand-bills and
booklets to arouse the sentiments of the people. Although it is stated that the
detenu had tried to arouse the sentiments of the people against the State
Government, the alleged act on the part of the detenu even if it was true could
not be considered to be prejudicial to the security of the State of Jammu &
Kashmir because the State of Jammu & Kashmir had nothing to do with the
proposed execution of Mr. Z. A. Bhutto. Ground No. 8 which lacks material
particulars appears to be a general one. These grounds are also vague in so far
as the question of security of the State is concerned.
It is thus clear that none of the grounds
supplied to the detenu falls within the scope of clause (a) of section 8(3) (1)
of the Act which defines the expression "acting in any manner prejudicial
to the security of the State". It is further seen that even though it is
stated in the grounds that the District Magistrate was of the view that the
detenu remaining at large was prejudicial to the security of the State also, he
did not make the order with a view to preventing him from acting in any manner
prejudicial to the security of the State. A combined reading of the order of
detention and the grounds furnished to the detenu shows that at the time when
the order was made, the District Magistrate either had no material relevant to
the security of the State on which he could act or even if he had information
of those grounds, he did not propose to act on it. He, however, tried to
support the order of detention by stating in the course of the grounds that by
the detenu remaining at large the security of the State was likely to be
prejudiced.
1112 The expressions "law and
order", "public order" and "security of the State" are
distinct concepts though not always separate. Whereas every breach of peace may
amount to disturbance of law and order, every such breach does not amount to
disturbance of public order and every public disorder may not prejudicially
affect the "security of the State". This is borne out from the
observations made by Patanjali Sastri, J. in the decision of this Court in
Romesh Thappar v. The State of Madras (1) which are as follows:- "As
Stephen in his Criminal Law of England observes: Unlawful assemblies, riots,
insurrections, rebellions, levying of war, are offences which run into each
other and are not capable of being marked off by perfectly defined boundaries.
All of them have in common one feature, namely that the normal tranquillity of
a civilized society is in each of the cases mentioned disturbed either by actual
force or at least by the show and threat of it." Though all these offences
thus involve disturbances of public tranquillity and are in theory offences
against public order, the difference between them being only a difference of
degree, yet for the purpose of grading the punishment to be inflicted in
respect of them they may be classified into different minor categories as has
been done by the Indian Penal Code. Similarly, the Constitution, in formulating
the varying criteria for permissible legislation imposing restrictions on the
fundamental rights enumerated in article 19(1), has placed in a distinct
category those offences against public order which aim at undermining the
security of the State or overthrowing it, and made their prevention the sole justification
for legislative abridgement of freedom of speech and expression, that is to
say, nothing less than endangering the foundations of the State or threatening
its overthrow could justify curtailment of the rights to freedom of speech and
expression, while the right of peaceable assembly "sub- clause (b)"
and (c) right of association "sub-clause (c)" may be restricted under
clauses (3) and (4) of Article 19 in the interests of "public order,"
which in those clauses includes the security of the State. The differentiation
is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh
Schedule, which refers to the "security of a State" and
"maintenance of public order" as distinct subjects of legislation.
The Constitution thus requires a line to be drawn in the field of public order
or tranquillity 1113 marking off, may be, roughly, the boundary between those
serious and aggravated forms of public disorder which are calculated to
endanger the security of the State and the relatively minor breaches of the
peace of a purely local significance, treating for this purpose differences in
degree as if they were differences in kind." As observed by Hidayatullah,
J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one
has to imagine three concentric circles, in order to understand the meaning and
import of the above expressions. 'Law and order' represents the largest circle
within which is the next circle representing "public order" and the
smallest circle represents "security of State". It is then easy to
see that an act may affect law and order but not public order just as an act
may affect public order but not security of State. It is in view of the above
distinction, the Act defines the expressions "acting in any manner
prejudicial to the security of the State" and "acting in any manner
prejudicial to the maintenance of public order" separately. An order of
detention made either on the basis that the detaining authority is satisfied
that the person against whom the order is being made is acting in any manner
prejudicial to the security of the State or on the basis that he is satisfied
that such person is acting in any manner prejudicial to the maintenance of
public order but which is attempted to be supported by placing reliance on both
the bases in the grounds furnished to the detenu has to be held to be an
illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali
& Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3).
The order of detention is, therefore, liable to
be quashed and the detenu is entitled to be set at liberty. The petition is
accordingly allowed.
In view of the above conclusion, we have not
gone into the other contention urged by Mr. M. K. Ramamurthi that many of the
grounds furnished to the detenu being vague, the order of detention cannot be
supported even on the ground that it had been passed with a view to preventing
the detenu from acting against public order.
N.K.A. Petition allowed.
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