Ajay Dixit, N.S.A. Detenu, Through His
Next Friend and Father Vs. State of U.P. & Ors [1984] INSC 177 (26
September 1984)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 18 1985 SCR (1) 843 1984
SCC (4) 400 1984 SCALE (2)529
CITATOR INFO :
RF 1990 SC 496 (9)
ACT:
National Security Act, 1980, sec. 3 (2) and
5A-"Law and Order situation" and "Maintenance of Public
Order" distinguished.
HEADNOTE:
Section 3 (2) of the National Security Act
1980 (for short, the Act) empowers the Central Government and the State
Governments, if satisfied With respect to any person, with a view to preventing
him, "inter alia from acting in any manner prejudicial to the maintenance
of public order", it is necessary to do so to make an order directing such
person to be detained. Section 5-A of the Act by virtue of section 2 of the
National Security (Second Amendment) Act provides. (i) that where a person has
been detained under section 3 of the Act on two or more grounds, such order of
detention shall be deemed to have been made separately on each of such grounds
and that such an order shall not be deemed to be invalid or inoperative merely
because one or some of the grounds are vague, non-existent, non-relevant, not
connected or invalid for any reasons whatsoever and the Government or officer
making the order of detention shall be deemed to have made the order of
detention under the said section after being satisfied as provided in that
section with reference to the remaining ground or grounds.
The District Magistrate, Agra passed an order
of detention of Ajay Dixit, the detenu, under s. 3 (2) of the Act on 29th
February 1984 stating that he was satisfied that the detenu was likely to act
in a manner prejudicial to maintenance of public order and that it was
necessary to detain him with the object of preventing him from acting
prejudicially to the maintenance of public order. The grounds of detention were
(i) that on 10.4.81 the detenu alongwith his companions surrounded Shri
Kanhaiya Lal Sharma with the intention of killing him but the latter escaped
slightly; (ii) that on 27.9.82 he fired at the police party from his house
where the policy had gone to arrest goondas collected by him; (iii) That on his
arrest on 27.9.1982 a country made 844 Tamancha and two live cartridges without
licence were recovered from him; (iv) That on 15.1.83 he shot dead Shri Naresh
Paliwal; (v) That on 31.10.1983, he forcibly compelled Mrs. Sanjeev Kumar
Paliwal at the point of a revolver to take a nude snap of immoral act being
committed by Umesh with Sanjeev Kumar Gupta; and (vi) That on 26.2.1984, he
attempted to murder Shri Jai Kumar Jain. The grounds of detention also stated
the fact that criminal cases were pending trial in the court in respect of the
above criminal acts committed by the detenu.
The petitioner-father of the detenu, moved
this Court under Article 32 of the Constitution for a writ of habeas corpus
directing the release of the detenu from detention.
He contended, inter-alia, that the grounds
mentioned in the order wore illusory, insufficient and not bona fide and in any
case irrelevant for the detention of the detenu for the maintenance of public
order.
Allowing the writ petition,
HELD: (1) The satisfaction of the detaining
authority cannot be subjected to objective tests and courts are not to exercise
appellate powers over such authorities and an order proper on its face, passed
by a competent authority in good faith, would be a complete answer to a
petition for a writ of habeas corpus. But when a challenge is made to a
detention on the grounds that the stale and irrelevant grounds were the basis
for detention, then the detenu is entitled to be released and to that extent the
order is subject to judicial review not on the ground of sufficiency of the
grounds nor the truth of the grounds but only about the relevancy of the
grounds which would come under judicial scrutiny. It is, therefore, necessary
in each case to examine the facts to determine not the sufficiency of the
grounds nor the truth of the grounds, but nature of the grounds alleged and see
whether these are relevant or not for considering whether the detention of the
detenu is necessary for maintenance of public order.
[850F; 853A-B; 854G-H] (2) It is important to
bear in mind the difference between the law and order situation &
maintenance of public order. The contravention 'of law' always affects 'order,
but before it could be said to affect 'public order' it must affect the
community or the public at large. The question whether a man has only committed
a broach of law and order or has acted in a manner likely to cause a
disturbance of the public order, is a question of degree and the extent of the
reach of the act upon society. The test is: Does it lead to a disturbance of
the even tempo and current of life of the community so as to amount to a
disturbance of the public order. Or, does is affect merely an individual
without affecting the tranquillity of society. It may be remembered that
qualitatively, the acts which affect 'law and order' are not different from the
acts which affect 'public order'.
Indeed a state of peace or orderly
tranquillity which prevails as a result of the observance or enforcement of
internal laws and regulations by the Government is a feature common to the
concepts of 'law and order. and 'public order' Every kind of disorder or
contravention of law affects that orderly tranquility. The distinction between
the areas of 'law and order' and 'public order' "is one of degree and
extent of the reach of the act in question on society". It is the
potentiality of the act to disturb the even tempo of the life of the community
which makes it prejudicial to the maintenance of public order. If the contravention
in its effect is confined only to a few individuals directly involved as 845
distinguished from a wide spectrum of the public, it would raise a problem of
law and order only. These concentric concepts of 'law and order' and 'public
order' may have a common 'epicentre', but it is the length, magnitude and
intensity of the terror-wave unleashed by a particular eruption of disorder
that helps distinguish it as an act affecting 'public order' from that
concerning law and order.
[851A-B; D-E; G-H; 852A-D] (3) In the instant
case, apart from the fact that the first ground was old and stale, it is
irrelevant in as much as the detenu has been acquitted of the charge before the
detention order was passed. The other grounds mentioned in the detention order
no doubt are also unfortunate and the conduct alleged of the detenu is
reprehensible. Such conducts, if true, are not of such nature which could
possibly endanger 'public order'. The grounds mentioned therein are not of such
magnitude as to amount to apprehend disturbance of public order, nor was there
any evidence that for any conduct of the detenu public order was endangered, or
there could be reasonable apprehension about it. In view of the nature of the
allegations mentioned in the grounds, this Court is satisfied that these are
not of such a nature as to lead to any apprehension that the even tempo of the
community would be endangered. Therefore, the detention of the detenu under the
provisions of section 3 (2) of the Act was not justified. [853C-D; 855A] Dr.
Ram Manohar Lohia v. State of Bihar & Ors [1966] 2 S.C.R, 709. Arun Ghosh
v. State of West Bengal [1970] 3 S.C.R. 288, Ram Ranjan Chatterjee v. State of
West Bengal [1975] 4 S.C.C. 143 at 146 Jaya Mala v. Home Secretary Govt.
of J & K. [1982] 2 S.C.C. 538, Alijan
Mian V. District Magistrate, Dhanbad and Others [1983] 4 S.C.C. p 301. at 308
and Kamlakar Prasad Chaturvedi v. State of M.P. and Another. [1983] 4 S.C.C.
433. followed.
ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 916 (Under Article 32 of the Constitution of India) Sunil K.
Jain and Diwan Balak Ram for the Petitioners.
Manoj Swarup and Dalveer Bhandari for the
Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Shri Ram Narain Dixit in this petition under Article 32
of the Constitution challenges the detention of Ajay Dixit, his son in the
District Jail of Agra, under the National Security Act, 1980. The District
Magistrate, Agra passed a detention order and served on Ajay Dixit hereinafter
called the detenu under section 3 of the National Security Act, hereinafter 846
called the Act, on six different grounds. The grounds mentioned therein are as
follows:
"1. That on 10.4.1981 at 10.30 p.m. you
alongwith your companions surrounded Shri Kanhaiya Lal Sharma resident of
Ferozepur and fired at him with the intention of killing him but he escaped
slightly. In this connection a case under S.307 of I.P.C. was lodged with the
Police Station and is pending the trial in the court against you.
2. That on dated 27.9.82 at 3.10 p.m. you
collected goondas in your house in the town of Ferozabad and when the police
party reached in order to arrest the goondas you fired at the police party on
which a case against you under S. 307/34 of Indian Penal Code is pending the
trial in the court.
3. That on dated 27.9.82 you were arrested by
the police in the town of Ferozabad and a country made Tamancha and live
cartridges without licence were recovered from your possession in respect of
which a case against you under S.25/27 of Arms Act is pending the trial in the
court.
4. That on 15.1.83 at 5.00 p.m. you alongwith
your brother shot dead Shri Naresh Paliwal brother of Shri Sanjeev Kumar
Paliwal resident of Ferozabad. In this respect a case against you under S.302
of Indian Penal Code was registered in the Police Station and is pending trial
in the court.
5. That on 31.10.83 Shri Sanjeev Kumar
Paliwal lodged a report with the Thana Ferozabad (North) that he was carrying
the profession of photography. 12-13 days before a boy took him away for the
purpose of a photograph to a room where you and your associates were present
and you forcibly compelled Mrs. Sanjeev Kumar Paliwal at the point of revolver
to take a nude snap of immoral act being committed by Umesh with Sanjeev Kumar
Gupta. In this respect a case against you under Section 342/286 of Indian Penal
Code was registered and the same is under trial.
6. That on 26.2.84 at about 5.00 p.m. you
alongwith your associates in the town of Ferozabad attempted to murder 847 by
sprinkling kerosene oil and by lighting it with a match box Shri Jai Kumar Jain
resident of Ferozabad in order to recover your so-called money in respect of
which a case against you under S.307 of Indian Penal Code was register ed and
is under trial." On the above grounds the District Magistrate by his order
dated 29.2.1984 stated that he was satisfied that the said Ajay Dixit was
likely to act in a manner prejudicial to maintenance of public order and that
it was necessary to detain him with the object of preventing him from acting
prejudicially to the maintenance of public order. The said order was passed
under Sub-section (2) of Section 3 of The National Security Act, 1980., and the
petitioner was detained from 29th February, 1984. On March 14th, 1984 the
petitioner submitted his representation to the Advisory Board. On 23rd march,
1984, the State Government rejected the representation of the detenu.
The petitioners alleged that the procedures
and formalities provided under the Act had not been made available and applied
in the case of the detenu. The petitioner states that the detenu was detained
and the grounds mentioned in the order were illusory, insufficient and not
bonafide and in any case irrelevant for the detention of the detenu for the
maintenance of public order.
Subsection (2) of Section 3 of the Act
empowers the Central Government and the State Governments, if satisfied with
respect to any person, with a view to preventing him "inter alia from
acting in any manner prejudicial to the maintenance of public order", it
is necessary to do so to make an order directing such person be detained.
There are decisions which have dealt with
limits and the scope of this rather drastic power of preventive detention
vested in the Government and which is sanctioned under the provisions of
Article 22(3), (4) and (5) of the Constitution. There are various procedural
safeguards like making known to the detenu within a particular time the grounds
of detention and giving him information that he can make representation against
the detention within a particular time and further that the representation
should be placed before the Advisory Board and the opinion of the Advisory
Board should be placed before the Government concerned Land thereafter decision
taken. The petitioner made some other averments of non-compliance with the
procedural safeguards under the Act. The main ground in the petition is that
the petitioner was not informed of the rights available to him nor of the
reasons or order passed on his representation. In view of the averments made in
the petition and the affidavits filed on behalf of respondent, it is not
necessary in the facts and circumstances of this case to discuss these in
detail.
Preventive detention is an exception to the
normal procedure. It is sanctioned and authorised for very limited purpose
under Article 22(3)(b) with good deal of safeguards.
The exercise of that power of preventive
detention must be with circumspection and care. We are governed by, the
Constitution and our Constitution embodies a philosophy of government and a way
of life. The working of this Constitution requires understanding between those
who exercise power and the people over whom or in respect of whom such power is
exercised. The purpose of all government is to promote common well-being and it
must sub-serve the common good and it is necessary therefore to protect
individual rights as far as consistent with security of the society and an
atmosphere where the even tempo of the community is least endangered. These
provisions should be so read as to imply grant of power and also limit the user
of the power. The observance of a written law about the procedural safeguards
for the protection of the individual is the normal and high duty of a public
official. But in all circumstances is not the highest. The law of self- preservation
and national security often claimed a higher priority. "To lose our
country by a scrupulous adherence to written law, would be to lose the law
itself, with life, liberty, property and all those who are enjoying them with
us, thus absurdly sacrificing the end to the means", Thomas Jefferson
Writings (Washington ed. V. page 542-545 Sometimes the executive may have to
act without normal safeguards for ordinary detention and resort to preventive
detention when the necessity demands it, but it must explain its action when
called upon in judicial review and ask for acquittance, The question of
difference between 'law and order' and 'public order' has come up many a times
ill judicial decisions. In the case of Dr. Ram Manhohar Lohia v. State of Bihar
& Ors., a Constitution Bench of this court had to consider this controversy
in the context of Rule 30 (i) (b) of the Defence of India Rules, 1962. Mr.
Justice Sarkar who was a party to the majority view 849 observed that it was
not necessary to take too technical a view but one should proceed in a matter
of substance, if a man could be deprived of his liberty by the simple process
of making of an order he could only be so deprived of it if the order is in
terms of rule. If for the purpose of justifying the detention such compliance
by itself is enough, non-compliance must have a contrary effect. A mere
reference in the detention order to the rule is not sufficient to show that by
"law and order" what was meant was public order. The learned judge
observed that the order no doubt mentioned another ground of detention namely
prevention of acts and so far as it did so, it was clearly within the rule. But
the order has notwithstanding this, to be held illegal, though it mentioned a
ground on which a legal order of detention could have been passed, because it
could not be said that in what manner and to what extent the valid and invalid
grounds operated on the mind of the detaining authority. Of course, as the
present law stands if one of the grounds is invalid the order of detection cannot
be set aside merely on that ground.
The National Security (Second Amendment) Act,
1984 was assented to by the President on 31st August, 1984 and it provided that
it should be deemed that the Act had come into force on the 21st of June, 1984.
Section 5A of the Act by virtue of Section 2 of the National Security (Second
Amendment) Act, reads as follows:
"5A. Where a person has been detained in
pursuance of an order of detention whether made before or after the
commencement of the National Security (Second Amendment) Act, 1984 under
section 3 which has been made on two or more grounds, such order of detention
shall be deemed to have been made separately on each of such grounds and
accordingly:- (a) Such order shall not be deemed to be invalid or inoperative
merely because one or some of the grounds is or are- (i) Vague, (ii)
non-existent, (iii)not relevant, 850 (iv) not connected or not proximately
connected with A such person, or (v) invalid for any other reasons whatsoever.
and it is not, therefore, possible to hold that the Government or officer
making such order would have been satisfied as provided in section 3 with
reference to the remaining ground or grounds and made the order of detention:
(b) the Government or officer making the
order of detention shall be deemed to have made the order of detention under
the said section after being satisfied as provided in that section with
reference to the remaining ground or grounds." The Act specifically makes
the provision of Section SA of the amended portion of the Act applicable in
case of an order of detention whether passed before the commencement of the '
National Security (Second Amendment) Act, 1984 or after it. Therefore in this
order of detention section 5A would be applicable, as the order was passed
before the coming into force of the National Security (Second Amendment) Act,
1984.
Justice Hidayatullah, as the learned Chief
Justice then was, and Justice Bachawat observed in the said decision that the
satisfaction of the detaining authority cannot be subjected to objective tests
and courts are not to exercise appellate powers over such authorities and an
order proper on its face, passed by a competent authority in good faith, would
be a complete answer, to a petition for a writ of habeas corpus. But when from
the order itself circumstances appear which raise a doubt whether the officer
concerned had not misconceived his own powers, there is need to cause and
enquire. The enquiry then is, not with a view to investigate the sufficiency of
the materials but into the officer's notions of his power. If the order passed
by him showed that he thought his powers were more extensive than they actually
were, the order might fail to be a good order. When the liberty of the citizen
is put within the reach of authority and the scrutiny by courts is barred, the
action must comply not only with the substantive requirements of law but it
should be with those forms which alone can indicate the substance. The learned
judges further observed that the contravention 'of law' always affects 'order'
but before 851 it could be said to affect 'public order', it must affect the
community or the public at large. One has to imagine three concentric circles,
the largest representing "law and order", the next representing
"public order" and the smallest representing "Security of
State''. An act may affect "law and order" but not "public
order", just as an act may affect 'public order" but not
"Security of the State". Therefore one must be careful in using these
expressions.
In the decision of this Court in this case of
Arun Ghosh v. State of West Bengal, the question was whether the grounds
mentioned could be construed to be breach of public order and as such the
detention order could b e validly made. There the appellant had molested two
respectable young ladies threatened their fathers life and assaulted two other
individuals. He was detained under section 3(2) of the Preventive Detention
Act, 1950 in order to prevent him from acting prejudicially to the maintenance
of public order. It was held by this Court that the question whether a man has
only committed a breach of law and order, or has acted in a manner likely to
cause a disturbance of the public order, is a question of degree and the extent
of the reach of the act upon society. The test is: Does it lead to a
disturbance of the even tempo of the life of the community so as to amount to a
disturbance of the public order, or, does it affect merely an individual
without affecting the tranquillity of society. This court found in that case
however reprehensible the appellant's conduct might be, it did not add up to
the situation where it may be said that the community at large was being
disturbed. Therefore, it could not be said to amount to an apprehension or
breach of public order, and hence, he was entitled to be released.
The law on this point was stated by this
Court in the case of Ram Ranjan Chatterjee v. State of West Bengal as follows:
"lt may be remembered that
qualitatively, the acts which affect 'law and order' are not different from the
acts which affect 'public order'. Indeed, a state of peace or orderly
tranquillity which prevails as a result of the observance or enforcement of
internal laws and regulations by 852 the Government, is a feature common to the
concepts of 'law and order' and 'public order'. Every kind of disorder or
contravention of law affects that orderly tranquillity. The distinction between
the areas of 'law and order' and 'public order' as pointed by this Court in
Arun Ghosh v. State of West Bengal, is one of degree and extent of the reach of
the act in question on society". lt is the potentiality of the act to
disturb the even tempo of the life of the community which makes it prejudicial
to the maintenance of public order. If tile contravention in its effect is
confined only to a few individuals directly involved as distinguished from a
wide spectrum of the public, it would raise a problem of law and order only.
These concentric concepts, of 'law and order' and 'public order' may have a
common 'epicentre', but it is the length magnitude and intensity of the
terror-wave unleashed by a particular eruption of disorder that helps
distinguish it is an act affecting 'public order' from that concerning 'law and
order'.
Reliance was also placed upon Jaya Mala v.
Home Secretary Government of J & K. In that case also a criminal case had
been started on the basis of an incident. The Court felt that the grounds of
detention were such grounds upon which no valid order can be sustained. It has
been further observed at page 540 as follows:
"But it is equally important to bear in
mind that every minor infraction of law cannot be upgraded to the height of an
activity prejudicial to the maintenance of public order....... If every
infraction of law having a penal sanction by itself is a ground for detention
danger looms larger than the normal criminal trials, and criminal courts set up
for administering justice will be substituted by detention laws often described
as lawless law." See also in this connection the observations of this
Court in Alijan Mian v. District Magistrate, Dhanbad and others.
Stale incidents cannot also be a valid ground
for sustaining detention. See in this connection the observations of this Court
853 in Kamkalar Prasad Chaturvedi v. State of M.P. and Another.
When a challenge is made to detention on the
grounds that the stale and irrelevant grounds were the basis for detention then
the detenu is entitled to be released and to that extent the order is subject
to judicial review not on the ground of sufficiency of the grounds nor the
truth of the grounds but only about the relevancy of the grounds which would
come under judicial scrutiny.
Bearing the aforesaid principles in mind, the
first ground mentioned in the order of detention was that the detenu along-with
the companions surrounded one Kanhaiya Lal Sharma and had committed an offence
under Section 307 of Indian Penal Code on or about 10th April, 1981. Apart from
the fact that the ground was old and stale, it is irrelevant inasmuch as the
detenu has been acquitted of the charge before the detention order was passed.
He was acquitted on 2nd February, 1984 whereas the detention order was passed
on 29th February. 1984. The respondents in their counter do not dispute this
position but state that the information had not reached the detaining or the
recommending authority. This is unfortunate. The other grounds mentioned in the
detention order no doubt are also unfortunate and the conduct alleged of the
detenu is reprehensible. Such conducts, if true, are not of such nature as
could possibly endanger 'public order'. The incident was alleged to have
happened ten or twelve days prior to 31st October, 1983, yet the detention order
was passed quite some time thereafter in February, 1984. In certain criminal
charges mentioned in grounds numbers 2,3, 4 and 5, there is no difficulty in
arresting the detenu. The grounds mentioned therein are not of such magnitude
as to amount to apprehend disturbance of public order, nor was there any
evidence that for any conduct of the detenu public order was endangered, or
there could be reasonable apprehension about it. As emphasised by the decisions
of this Court, it is important to bear in mind the difference between law and
order situation and maintenance of public order. The act by itself is not
determinate of its gravity. In its quality it may not differ from another but
its potentiality may be very different. Therefore the question whether a man
has only committed a breach of law and order or acted in a manner likely to the
disturbance of public order is a question of degree of the reach of the act
upon society. In this connection it may be appropriate to refer to the
observations in the case of Arun Ghosh v. State of West Bengal (supra) at page
290 as follows:
"It means therefore that the question
whether a man has only committed a breach of law and order or has acted in a
manner likely to cause a disturbance of the public order is a question of
degree and the extent of the reach of the act upon the society. The French
distinguish law and order and public order by designating the latter as order
publique. The latter expression has been recognised as meaning something more
than ordinary maintenance of law and order.
Justice Ramaswami in Writ Petition No. 179 of
1968 drew a line of demarcation between the serious and aggravated forms of
breaches of public order which affect the community or endanger the public
interest at large from minor breaches of peace which do not affect the public
at large. He drew an analogy between public and private crime. The analogy is
useful but not to be pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public order. In Dr Ram
Manohar Lohia's case examples were given by Sarkar, and Hidayatulla, JJ. They
show how similar acts in different contexts affect differently law and order on
the one hand and public order on the other. It is always a question of degree
of the harm and its effect upon the community. The question to ask is: Does it
lead to disturbance of the current of life of the community so as to amount to
a disturbance of the public order or does it affect merely an individual
leaving the tranquillity of the society undisturbed ? This question has to be
faced in every case on facts. There is no formula by which one case can be
distinguished from another." It is, therefore, necessary in each case to
examine the facts to determine, not the sufficiency of the grounds nor the
truth of the grounds, but nature of the grounds alleged and see whether these
are relevant or not for considering whether the detention of the detenu is
necessary for maintenance of public order.
In view of the nature of the allegations
mentioned in the 855 grounds, we are of the opinion that these are not such a
nature as to lead to any apprehension that the even tempo of the community
would be endangered. Therefore the detention of the detenu under the provisions
of Section 3(2) of the Act was not justified.
There are various allegations of mala fide in
this application namely that one of the relations of Advocate- General of U.P.
was involved. It is alleged that the Advocate-General of U.P. is the
father-in-law of a local resident with whom the family of the detenu had land
dispute due to which many attempts on the life of the detenu and his brother
had been caused to be made by the Advocate General.
In the view we have taken it is not necessary
for us to go into these questions. There are some submissions about the
procedural irregularities. Though on the whole we do not find much substance
but it is not necessary also to detain ourselves on the examination of these
question.
In the aforesaid view of the matter, the
detention order dated 29th February, 1984 which is Annexure I to the petition
is hereby quashed. The detenu should be set at liberty forthwith.
M.L.A. Petition allowed.
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