S.M.D.
Kiran Pasha Vs. Government of Andhra Pradesh & Ors [1989] INSC 339 (9 November 1989)
Saikia,
K.N. (J) Saikia, K.N. (J) Fathima Beevi, M. (J)
CITATION:
1989 SCR Supl. (2) 105 1990 SCC (1) 328 JT 1989 (4) 366 1989 SCALE (2)1083
ACT:
Constitution
of India, 1950: Articles 32 & 226--Life and personal liberty--Right
to-'Enforcement' of right in Court--Whether Court can insist that person
surrenders and then files habeas corpus petition--Post violation resort and pre
violation of protection----Distinction between.
HEAD NOTE:
The
appellant is a Municipal Councillor of the Cuddapah Municipal Council. He was
elected to the Council as an independent candidate. According to him, he enjoys
popularity in his area and had previously held important positions in the
District. He states that the local leadership of the ruling Telugu Desam Party
having failed to woo him into their fold, he was pressurised through the Excise
and Police authorities foisting false cases upon him. Scenting a move to detain
him under the provisions of the Andhra Pradesh Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986, the appellant filed a writ petition on
6.6.1988 in the High Court, averring inter alia that the successive actions
initiated against him were a part of political vendetta. A learned Single Judge
on 8.8.1988 was pleased to direct interim the respondents not to take the
appellant into preventive custody for a period of 15 days on the basis of the
cases already registered. However, on 10.6.1988 the appellant was served the
detention order dated 3.6.1988 as well as the grounds of detention, and he was
taken into custody, but was released after four days.
The
appellant filed on 25.6.1988 in his pending writ petition a miscellaneous
petition, as an additional affidavit. He assailed therein the order of
detention on various grounds. A Division Bench of the High Court, on reference
by the learned Single Judge, held that the prayer in the writ petition had
become infructuous, and that there were no extraordinary or special reasons to
depart from the normal rule, namely, that in such a case the appellant should
first surrender and move for a writ of habeas corpus. The Division Bench
accordingly, dismissed the writ petition.
Before
this Court it was inter alia contended on behalf of the 106 appellant that the
High Court erred in holding that there were no extraordinary circumstances or
special reasons to depart from the normal rule, thereby refusing to grant
relief to the appellant against infringement of his fundamental right to
liberty; that the detention order having not been approved by the State
Government as required under Section 3(3) of the Prevention of Dangerous
Activities Act and the appellant's case having not been placed before the
Advisory Board as required under section 10 thereof, the detention order ceased
to be in force and hence was liable to be quashed.
On
behalf of the respondent, it was contended that the detention order having been
passed before the writ petition was filed, the High Court was right in
dismissing the writ petition following the court's practice and procedure, and
that there were no extraordinary or special reasons to depart from the normal
rule inasmuch as granting relief at such a stage would defeat the very purpose
of the Act.
Counsel,
however, could not deny that the detention order was not approved by the State
Government and that the appellant's case was not placed before the Advisory
Board.
Allowing
the appeal and quashing the order of detention, this Court,
HELD:
(1) The position of a person who is actually under illegal detention and of a
person who is in imminent jeopardy of illegal detention are not far dissimilar.
Refusal to interfere in such a case may amount to denial of the fundamental
right itself. [114A].
Jayantiial
Bhagwandas Shah v. The State of Maharashtra, [1981] 1 Cr. L.J. 767, referred to.
(2)
There could be no reason why in an exceptional and rare case, detention order
already made, and either served or yet to be served, and the person is still
free, could not be legally brought under challenge. [114F] Vedprakash Devkinandan
Chiripal v. State of Gujarat, AIR 1987 Gujarat 253.
A.K. Gopalan
v. State of Madras, AIR 1950 SC 27; Addl. District
Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, referred to. 107
(3)
For enforcement of one's right to life and personal liberty resort to Article
226(1) has been provided for. The word 'enforcement' has also been used in
Article 32 of the Constitution which provides the remedy for enforcement of
rights conferred by Part III of the Constitution. The word 'enforcement' has
not been defined by the Constitution. [115B]
(4)
'Enforce' means to compel obedience to laws; to compel performance, obedience
by physical or moral force. [115C]
(5)
Conferring the right to life and liberty imposes a corresponding duty on the
rest of the society, including the State, to observe that right, that is to
say, not to act or to do anything which would amount to infringement of that
right, except in accordance with the procedure prescribed by law. [115F]
(6)
Resort to Article 226 after the right to personal liberty is already violated
is different from the pre-violation protection. Post-violation resort to
Article 226 is for remedy against violation and for restoration of the right,
while pre-violation protection is by compelling observance of the obligation or
compulsion under law not to infringe the right by all those who are so
obligated or compelled. To surrender and apply for a writ of habeas corpus is a
postviolation remedy for restoration of the right which is not the same as
restraining potential violators in case of threatened violation of the right.
[116B-C]
(7)
Law surely cannot take action for internal thoughts but can act only after
overt acts. If overt acts towards violation have already been done and the same
has come to the knowledge of the person threatened with the violation and he
approaches the court under Art. 226 giving sufficient particulars of proximate
actions as would imminently lead to violation of right, should not the court
call upon those alleged to have taken these steps to appear and show cause why
they should not be restrained from violating that right? [116 C-D]
(8)
The difference of the two situations have different legal significance. If a
threatened invasion of a right is removed by restraining the potential violator
from taking any steps towards violation, the rights remain protected and the
compulsion against its violation is enforced. If the right has already been
violated, what is left is the remedy against such violation and for restoration
of the right. [116F-G]
(9) In
the instant case, the appellant's fundamental right to 108 liberty is the
reflex of a legal obligation of the rest of the society, including the State,
and it is the appellant's legal power bestowed upon him to bring about by a
legal action the enforcement of the fulfilment of that obligation existing
towards him. Denial of legal action would, therefore, amount to denial of his
right of enforcement of his right to liberty. A petition for a writ of habeas
corpus would not be a substitute for this enforcement. [120D-E] K.K. Kochunni
v. The State of Madras and Ors., [1959] Supp. 2 SCR 316; Special Reference No.
1 of 1964, [1965] 1 SCR 413; M.C. Mehta v. Union of India, [1987] 1 SCC 395
referred to.
(10)
As the detention order was already passed and served and the detenu was already
taken into custody during the pendency of the writ petition, these subsequent
events having being brought to the notice of the court by a Misc. application
in the form of additional affidavit, the same ought to have been dealt with by
the High Court..[113A-B]
(11)
The detention order had not been approved by the State Government within 12
days of its being made, as enjoined under subsection (3) of section 3 of the
Act. The result is that the order could not remain in force more than 12 days
after making thereof and as such must be treated as to have ceased to be in
force and non-existent thereafter.
[122A]
(12)
Even though the detenu was released, if the detention order was in force, his
case was required to be placed before the Advisory Board. This being a
mandatory provision and having not been complied with, the detention order even
if otherwise in force, cannot be said to have been in force after three weeks.
[122H; 123A]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 702 of 1989.
From
the Judgment and Order dated 4.7.1988 of the Andhra Pradesh High Court in W.P.
No. 8610 of 1988.
M.C. Bhandare
and Ms. C.K. Sucharita for the Appellant.
Ganesh,
S. Muralidhar, T.V.S.N. Chari and Raghav for the Respondents.
109
The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave
granted.
This
appeal is from the Judgment and Order of the High Court of Andhra Pradesh at Hyderabad dated 4.7.1988 passed in Writ
Petition No. 86 10 of 1988.
The
appellant states that he enjoys popularity in his area and that he previously
held several important positions in the Cuddapah District of Andhra Pradesh,
such as organising Secretary of the Andhra Pradesh Congress Committee for
several years, a Municipal Councillor from 1982 to 1986 and a Vice-Chairman of Cuddapah
Municipal Council. According to him in December 1985 he was elected as a Chairman
of the Cuddapah Municipal Council for its residuary term and in March 1987 he
was elected to the Municipal Council as an independent candidate defeating the
Telugu Desam and Congress (I) candidates by a large margin. It is his case that
the local leadership of the ruling Telugu Desam Party.
having
failed to woo him into their fold he was pressurised through the Excise and
Police authorities foisting false cases upon him. On 13.11.1987, the police
having summoned him to the Police Station for taking his photograph as was done
in case of criminals, he moved the Andhra Pradesh High Court by Writ Petition
No. 79038 of 1987 and the High Court was pleased to issue directions as prayed
for, by its order dated 17.12.1987. Thereafter the excise authorities are
stated to have registered some cases against the appellant who applied for and
was granted bail on 10.5.1988 rejecting the Excise authorities' prayer for
custody. Scenting a move to detain the appellant under the provisions of the
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986,
hereinafter referred to as 'the Act', the appellant filed Writ Petition No.
8610 of 1988 on 6.6.1988 in the Andhra Pradesh High Court averting, inter alia,
that the successive actions initiated against him were a part of political
vendetta. A learned Single Judge on 8.6.1988 was pleased to direct interim the
respondents not to take the appellant into preventive custody for a period of
15 days on basis the cases already registered. However, on 10.6.1988 the
appellant was served the detention order in S.No. 7/1988 dated 3.6.1988 as well
as the grounds of detention; and he was taken into custody and detained in Secunderabad
jail, but was released after four days. The detention order stated that with a
view to preventing him from acting in a manner prejudicial to the maintenance
of public order, it was 110 necessary to make an order directing that "he
shall be detained." The grounds of detention as served upon the appellant
contained altogether 13 grounds ranging a period from 23.11.1974 to 7.5.1988.
The
appellant filed on 25.6.1988 in his writ petition a miscellaneous petition
being W.P.M.P.S.R. No. 51830, as an additional affidavit, stating, inter alia,
that the writ petition was filed by him seeking a direction to the respondents
to refrain from making an order detaining him under the provisions of the Act
and the same was admitted and interim direction issued. But thereafter the detention
order in S.No. 7 of 1988 dated 3.6.1988 was served on him on 10.6.1988 and,
therefore, he submitted the additional affidavit with reference to the impugned
order of detention. He assailed therein the grounds of detention as vague,
stale, non-existent and, in any case, irrelevant bearing no reasons for the
decision that his detention was necessary to prevent him from acting in a
manner prejudicial to the maintenance of public order. He also assailed the
order on grounds of non application of mind by the respondent NO. 2 and absence
of nexus between the grounds and maintenance of public order and of
non-disclosure of any rational basis for formation of such an opinion. He
refuted and denied each of the 13 grounds and prayed that the writ petition be
amended by substituting the prayer so as to issue a writ, order or direction
and more particularly one in the nature of writ of mandamus declaring the order
of the Collector and District Magistrate respondent No. 2 herein in S.R. No. 7
of 1988 dated 3.6.1988 made under Act 1 of 1986 as illegal and void and to pass
such other orders as are necessary in the interests of justice. Admittedly no
specific order was passed on this miscellaneous petition. It appears that a
Counter Affidavit was filed in the writ petition on behalf of the respondents
and the appellant filed a reply affidavit thereto.
A
Division Bench of the High Court of Andhra Pradesh on reference by the learned
Single judge heard the writ petition analogously with another writ petition and
observing, inter alia, that as an order of detention was made even before the
writ petition was filed, held that the prayer in the writ petition had become infructuous;
and that there were no extraordinary or special reasons to depart from the
normal rule, namely, that in such a case the appellant should first surrender
and move for a writ of habeas corpus, and accordingly dismissed the writ
petition.
Mr.
M.C. Bhandare, the learned counsel for the appellant submits, inter alia, that
the High Court erred in dismissing the appellant's 111 writ petition holding
that there were no extraordinary circumstance, or special reasons to depart
from the normal rule that the appellant in such a case should first surrender
and then move a petition for habeas corpus thereby refusing to grant relief to
the appellant against infringement of his fundamental right to liberty; and
that the grounds of detention were vague, irrelevant, stale and nonexistent
having no relation to the stated purpose of detention, and there was mala fide
exercise of power and complete non-application of mind on the part of the
detaining authority for which the grounds of detention ought to have been
rejected and the detention order set aside. Counsel relies on a decision of the
Bombay High Court reported in 1981(1) Crl. L.J. 767 and one of the Gujarat High
Court since reported in AIR 1978 Gujarat 253. Counsel further submits that the detention order having not been
approved by the State Government as required under section 3(3) of the Act and
the appellant's case having not been placed before the Advisory Board as
required under section 10 the detention order ceased to be in force and hence
is liable to be quashed.
Mr.
M.S. Ganesh, the learned counsel for the respondents submits that the detention
order having been passed before the writ petition was filed, the High Court was
right in dismissing the same following the court's practice and procedure; and
that there were no extraordinary or special reasons to depart from the normal
rule inasmuch as granting relief at such a stage would defeat the very purpose
of the Act. Counsel however, could not deny that the detention order was not
approved by the State Government and that the appellant's case was not placed
before the Advisory Board.
The
first question to be decided therefore, is whether the High Court was right in
dismissing the writ petition holding that the rule or practice of the High
Court in such a case was to interfere only where there were extraordinary or
special reasons and otherwise to leave the appellant to first surrender and
then move a petition for habeas corpus.
From a
perusal of the Judgment of the High Court it appears that it analysed the
question of maintainability of the writ petition from two view points, namely,
of the High Court's power, and the High Court's rule or practice. The High
Court correctly analysed the power of the High Court to interfere in such a
case under Article 226 of the Constitution of India concluding that the High Court had power to interfere.
While tracing the High Court's evolving rule or practice, the Bench took the
view that it was but appropriate and proper that the 112 court evolved and
followed a practice and procedure where it would not ordinarily entertain a
challenge to a preventive detention unless the person concerned submitted
himself to the order and not to encourage persons against whom orders of
preventive detention were made by the competent authority under a valid
enactment to avoid the process of law and at the same time seek the protection
of law from this Court.
Relying
on several decisions of its own, the Court observed:
"There
is no presumption that any and every order of detention is bad. The normal rule
shall therefore be "surrender to the order first and then approach this
Court." Only in extraordinary cases, where it appears that the State is
exercising its power under a preventive detention statute for an oblique
purpose, or in an outrageous and/or vindictive manner, or where the order of
detention is ex facie invalid, would this Court depart from this rule. Now,
what would be such extraordinary case cannot and, indeed, should not be defined
or specified. It is better left to the sound judgment and decision of this
Court." The High Court on facts of the appellant's writ petition, observed
that the allegations that the entire administrative machinery was being misused
by the local MLA who happened to be a Cabinet Minister to hound the appellant
and that the Collector and District Magistrate was being used as a tool were
not correct and, therefore, said:
"Once
we are of the opinion that there are no extraordinary or special reasons to
depart from the normal rule, we will not look into or examine the relevance or
correctness of the grounds as we would do in a writ of habeas corpus." The
writ petition was accordingly dismissed.
Mr. Bhandare
submits that when the appellant's fundamental right to liberty was threatened
through the machination of a detention order, he approached the High Court for
protection and when despite the interim order of the High Court his fundamental
right was violated by detaining him, after serving the order of detention on
vague, stale, irrelevant and non-existent grounds, though he was released after
four days, he ought not to have been denied relief on the ground of there
having evolved a practice or procedure of the Court not to interfere in such a
case except where there were extraordinary or special reasons 113 and to leave
the appellant to surrender and then move a petition for habeas corpus. We find
force in this submission. As the detention order was already passed and served
and the detenu was already taken into custody during the pendency of the writ
petition, these subsequent events having been brought to the notice of the
court by a Misc. application in the form of an Additional Affidavit--the same
ought to have been dealt with by the High Court.
In Jayantilal
Bhagwandas Shah v. The State of Maharashtra, [1981] 1 Crl. L.J. 767, the
challenge was directed towards orders of detention passed under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, but the intended detenus under those orders were not in detention. The
State having raised a preliminary objection to the maintainability of the
petition on the ground that the habeas corpus jurisdiction under Art. 226 of
the Constitution was exercisable only to examine the legality of a detention
where there was a detention and in no other case, a Division Bench of the
Bombay High Court took the view that though the writ of habeas corpus might be
issued only when there was actual illegal detention, that was not to say that
an illegal order of detention could not be successfully challenged.
In para
11 of the report, the Court held:
"Art.
226 is couched in language wide enough to protect a person against an illegal
invasion of his fight to freedom by protecting him while still free and by
regaining his freedom for him if he has already been wrongfully detained. We
cannot countenance and do not accept the Advocate General's submission that the
High Courts are impotent to give relief against the prospect of illegal
detention and must first require the intended detenu to surrender to the
illegal detention. We are satisfied that the High Courts may under the
provisions of Art. 226 issue a direction, order and writ in the nature of
mandamus and/or certiorari quashing an illegal order of detention and may by direction,
order and writ in the nature of prohibition enjoin the person threatening the
illegal detention from executing the threat."
Accordingly
the Court held that it would intervene to strike down an illegal order of
detention. If the court could in matters of personal liberty intervene on the
strength of a mere post-card, they surely could intervene on the strength of a
petition, though they may seek the 114 wrong relief or be phrased in the wrong
form. The position of a person who is actually under illegal detention and of a
person who is in imminent jeopardy of illegal detention are not far dissimilar.
We are inclined to agree with this view as we feel that refusal to interfere in
such a case may amount to denial of the fundamental right itself.
A Full
Bench of the Gujarat High Court in Vedprakash Devkinandan Chiripal v. State of
Gujarat, since reported in AIR 1987 Gujarat 253 where the petitioner was said
to be detained under the provisions of Prevention of Blackmarketing and
maintenance of Supply of Essential Commodities Act, 1980 and the petitioner
having absconded, a notification was issued in the official gazette as provided
under section 7(1)(b) of the said Act and the person moved the petition under
Art. 226 of the Constitution of India praying a writ of habeas corpus or a writ
of mandamus, the question was whether the petition would be maintainable before
the detenu had been served with order of detention and had been detained in
custody, answered the question in the affirmative.
Relying
on the decisions in A.K. Gopalan v. State of Madras, AIR 1950 SC 27 and Addl.
District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, the Full
Bench took the view "that before detention, if writ of mandamus is moved
for challenging unauthorised detention order which is already passed on the
ground that the order is a nullity because it is passed
(a) by
an incompetent person or
(b) it
is a mala fide order or
(c) it
is contrary to the legal procedure prescribed for passing such order, or
(d) it
is otherwise a nullity for any other reason, for example, passed against a
wrong person, it cannot be said that such challenge would be per se not
maintainable."
We are
inclined to agree inasmuch as it would be a challenge to an existing order of
detention which is posing an imminent threat to a fundamental right of the
named person guaranteed under Art.
21.
There could, therefore, be no reason why in such an exceptional and rare case,
detention order already made, and either served or yet to be served, and the
person is still free could not be legally brought under challenge.
Article
226(1) of the Constitution of India notwithstanding anything in Article 32,
empowers the High Court throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government within those territories directions, orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement
of any of the rights conferred by Part III and for any other purpose; and it
also envisages 115 making of interim orders, whether by way of injunction or
stay or in any other manner in such a proceeding. Article 21 giving protection
of life and personal liberty provides that no person shall be deprived of his
life or personal liberty except according to procedure established by law. For
enforcement of one's right to life and personal liberty resort to Article
226(1) has thus been provided for. What is the ambit of enforcement of the
right? The word 'enforcement' has also been used in Article 32 of the
Constitution which provides the remedy for enforcement of fights conferred by
Part III of the Constitution. The word 'enforcement' has not been defined by
the Constitution. According to Collins English Dictionary to enforce means to
ensure observance of or obedience to a law, decision etc. Enforcement,
according to Webster's Comprehensive Dictionary, means the act of enforcing, or
the state of being enforced, compulsory execution; compulsion. Enforce means to
compel obedience to laws;
to
compel performance, obedience by physical or moral force.
If
enforcement means to impose or compel obedience to law or to compel observance
of law, we have to see what it does precisely mean. The right to life and
personal liberty has been guaranteed as a fundamental right and for its
enforcement one could resort to Article 226 of the Constitution for issuance of
appropriate writ,' order or direction. Precisely at what stage resort to
Article 226 has been envisaged in the Constitution? When a right is so
guaranteed, it has to be understood in relation to its orbit and its
infringement.
Conferring
the right to life and liberty imposes a corresponding duty on the rest of the
society, including the State, to observe that fight, that is to say, not to act
or do anything which would amount to infringement of that right, except in
accordance with the procedure prescribed by law. In other words, conferring the
fight on a citizen involves the compulsion on the rest of the society,
including the State, not to infringe that right. The question is at what stage
the right can be enforced? Does a citizen have to wait till the right is
infringed? Is there no way of enforcement of the right before it is actually
infringed? Can the obligation or compulsion on the part of the State to observe
the fight be made effective only after the right is violated or in other words
can there be enforcement of a fight to life and personal liberty before it is
actually infringed? What remedy will be left to a person when his right to life
is violated? When a right is yet to be violated, but is threatened with
violation can the citizen move the court for protection of the right? The
protection of the right is to be distinguished from its restoration or remedy
after violation. When right to personal liberty is guaranteed and the rest of
the society, including the State, is compelled or obligated not to violate that
right, and if someone has threatened to violate it or its violation is
imminent, 116 and the person whose right is so threatened or its violation so
imminent resorts to Article 226 of the Constitution, could not the court
protect observance of his right by restraining those who threatened to violate
it until the court examines the legality of the action? Resort to Article 226
after the right to personal liberty is already violated is different from the
pre-violation protection. Post-violation resort to Article 226 is for remedy
against violation and for restoration of the right, while pre-violation
protection is by compelling observance of the obligation or compulsion under law
not to infringe the right by all those who are so obligated or compelled. To
surrender and apply for a writ of habeas corpus is a post-violation remedy for
restoration of the right which is not the same as restraining potential
violators in case of threatened violation of the right. The question may arise
what precisely may amount to threat or imminence of violation. Law surely
cannot take action for internal thoughts but can act only after overt acts. If
overt acts towards violation have already been done and the same has come to
the knowledge of the person threatened with that violation and he approaches
the court under Art. 226 giving sufficient particulars of proximate actions as
would imminently lead to violation of right, should not the court call upon
those alleged to have taken those steps to appear and show cause why they
should not be restrained from violating that right? Instead of doing so would
it be the proper course to be adopted to tell the petitioner that the court
cannot take any action towards preventive justice until his right is actually
violated whereafter alone he could petition for a writ of habeas corpus? In the
instant case when the writ petition was pending in court and the appellant's
right to personal liberty happened to be violated by taking him into custody in
preventive detention, though he was released after four days, but could be
taken into custody again, would it be proper for the court to reject the
earlier writ petition and tell him that his petition has become infructuous and
he had no alternative but to surrender and then petition for a writ of habeas
corpus? The difference of the two situations, as we have seen, have difference
legal significance. If a threatened invasion of a right is removed by
restraining the potential violator from taking any steps towards violation, the
rights remain protected and the compulsion against its violation is enforced.
If the right has already been violated, what is left is the remedy against such
violation and for restoration of the right.
In
K.K. Kochunni v. The State of Madras and Ors., [1959] Suppl. 2 SCR 316, where
the grievance of the petitioner was that the Madras Marumakkathayam (Removal of
Doubts) Act, 1955 (Act 32 of 1955), 117 provided in section 2 of the Act that
notwithstanding any decision of court any Sthanam which fulfilled the
conditions stated in the section shall be deemed to be and shall be deemed
always to have been properties belonging to the tarwad to which the provisions
of the Madras Marumakkathayam Act, 1932 shall apply, and thus, unlike other
Acts that contemplated some further action to be taken by the State after the
enactment had come into force, automatically took away or abridged a person's
fundamental right (as right to property then was) immediately it came into
force, a Constitution Bench of this Court speaking through Das C.J. held that
there was no reason why the aggrieved person should not immediately be entitled
to seek the remedy under Art. 32 of the Constitution. The argument that an
application under Art. 32 could not be maintained until the State had taken or
threatened to take any action under the impugned law which again, if remedy to
be taken would infringe the petitioner's fundamental rights, was negatived by
this Court holding that in cases arising under those enactments the proprietors
could invoke the jurisdiction of this Court under Art. 32 when the State did or
threatened to do the overt act, (emphasis supplied). It was observed that quite
conceivably an enactment may immediately on its coming into force take away or
abridge the fundamental rights of a person by its very terms and without any
further overt act being done. The impugned Act was said to be an instance of
such enactment.
In
such a case, it was held, the infringement of the fundamental right was
complete eo instanti the passing of the enactment and, therefore, there could
be no reason why the person so prejudicially affected by the law should not be
entitled immediately to avail himself of the constitutional remedy under Art.
32. It was also observed that to say that a person, whose fundamental right had
been infringed by the mere operation of an enactment, was not entitled to
invoke the jurisdiction of this Court under Art. 32, for the enforcement of his
fight would be to deny the benefit of a salutary constitutional remedy which
was itself his fundamental right. The same reasoning is applicable to the facts
of the instant case inasmuch as the detention order was already passed and
served and the appellant was already taken into custody and though released
after 4 days the Government could at any time cancel his release under section
15 of the Act.
In the
Special Reference No. 1 of 1964, reported in [ 1965] 1 SCR 413 the Constitution
Bench speaking through Gajendragadkar, C.J. held (at page 493):
"If
a citizen moves this Court and complains that his fundamental fight under Art.
21 had been contravened, it would 118 plainy be the duty of this Court to
examine the merits of the said contention, and that inevitably raises the
question as to whether the personal liberty of the citizen has been taken away
according to the procedure established by law. In fact, this question was
actually considered by this Court in the case of Pandit Sharma, [1959] Supp. 1
SCR 806." The same law applies to a High Court moved under Article 226 of
the Constitution of India against similar contravention.
In
M.C. Mehta v. Union of India, [1987] 1 SCC 395, the Constitution Bench speaking
through Bhagwati, C.J. said:
"We
are also of the view that this Court under Article 32(1) is free to devise any
procedure appropriate for the particular purpose of the proceeding, namely,
enforcement of a fundamental right and under Article 32(2), the Court has the
implicit power to issue whatever direction, order or writ is necessary in a
given case, including all incidental or ancillary power necessary to secure
enforcement of the fundamental right. The Power of the Court is not only
injunctive in ambit, that is, preventing the infringement of a fundamental
right, but it is also remedial in scope and provides relief against a breach of
the fundamental right already committed vide Bandhua Mukti Morcha case. 1984 2
SCR 67. If the court were powerless to issue any direction, order or writ in
cases where a fundamental right has already been violated, Article 32 would be
robbed of all its efficacy, because then the situation would be that if a
fundamental right is threatened to be violated, the court can injunct such
violation but if the violator is quick enough to take action infringing the
fundamental right, he would escape from the net of Article 32. That would, to a
large extent, emasculate the fundamental right guaranteed under Article 32 and
render it impotent and futile." "Despite the power of the State"
says Jean Dabin, "there are always smart people who contrive to violate
the laws without incurring the rigours of compulsion; or, again, certain rules
are psychologically or technically awkward to apply, so that the machinery of
compulsion lends them but insufficient aid. In any case, actual inefficacy or
impotence of compulsion can affect the validity of the rule even less than
disobedience; that validity binds, and continues to bind, by virtue of 119 the
very disposition made by the rule." Analytical positivist concept of right
has been differently analysed. Hohfeld writing on fundamental legal concepts as
applied in judicial reasoning analysis four ideas.
One of
those is that a right may be claim-right. P has a right to do X, it means to
indicate that Q or everyone else has a duty to let P do X. The existence of
such a duty gives P some sort of claim against Q. Claim-rights may be either in
personam or in rem. A claim-right in personam co-relates to a duty of a person,
while claim-rights in rem co-relate to duties in principle incumbent on
everyone. A right enjoyed by one thus co-relates to a duty on the part of
others.
In
Hans Kelsen's analysis it is usual to oppose the concept of right to the
concept of obligation and to cede priority of rank to the former as we speak of
rights and duties. The behaviour of one individual that corresponds to the
obligated behaviour of the other is usually designated as a content of a
'right'-as an object of a 'claim' that corresponds to the obligation. "The
behaviour of the one individual that corresponds to the obligated behaviour of
the other, particularly the claiming of the obligated behaviour, is designated
as exercising a right." In case of an obligation to tolerate something,
the behaviour of the one corresponding to the obligation of the other is spoken
of as 'enjoyment' of the right. According to Kelsen the 'right' or a 'claim' of
an individual, is merely the obligation of the other individual or individuals.
When we speak of a right as a legally protected interest, in the words of Kelsen,
it refers to a right as the "reflex of a legal obligation".
Right
is often understood as a will power conferred by law.
A
'right' in the sense is present if the conditions of the sanction that
constitutes a legal obligation includes a motion, normally of the individual in
relation to whom the obligation exists; the motion is aimed at the execution of
the sanction and has the form of a legal action brought before the law applying
organ. Then this organ may apply the general norm to effectuate the fight, which
is the reflex of the legal obligation by executing the sanction. The right
which is the reflex of legal obligation is equipped with the legal power of the
entitled individual to bring about by a legal action the execution of a
sanction as a reaction against the non-fulfilment of the obligation whose
reflex is his right; or as it is sometimes called, the enforcement of the fulfilment
of this obligation. To make use of this legal power of motion is exercise of
the right. In this sense each right of an individual contains a claim to the behaviour
of another individual-namely to that behaviour to which the second individual
is obligated toward the first; the behaviour that constitutes 120 the content
of the legal obligation identical with the reflex right. If an individual,
towards which another individual is obligated to a certain behaviour, does not
have the legal power to bring about by a legal action the execution of a
sanction as a reaction against the non-fulfilment of the obligation, then the
act by which he demands fulfilment of the obligation has no specific legal
effect; the act is legally irrelevant, except for not being legally prohibited.
Therefore, a 'claim' as legally effective act exists only when a law exists,
which means that an individual has the legal power. The subject of a right may
be not only one individual but two or several individuals, including the State.
In the
language of Kelsen the right of an individual is either a mere reflex
right--the reflex of a legal obligation existing towards this individual; or a
private right in the technical sense--the legal power bestowed upon an
individual to bring about by legal action the enforcement of the fulfilment of
an obligation existing toward him, that is, the legal power. From the above analysis
it is clear that in the instant case the appellant's fundamental right to
liberty is the reflex of a legal obligation of the rest of the society,
including the State, and it is the appellant's legal power bestowed upon him to
bring about by a legal action the enforcement of the fulfilment of that
obligation existing towards him. Denial of the legal action would, therefore,
amount to denial of his right of enforcement of his right to liberty. A
petition for a writ of habeas corpus would not be a substitute for this
enforcement.
We,
therefore, proceed to consider the merits of this case instead of remanding to
the High Court to avoid further delay.
Mr. Bhandare's
submission is that the detention order having not been approved by the State
Government under subsection (3) of section 3 it had ceased to be in force after
12 days of its being made. We find force in this submission on the facts of the
case. Section 3 of the Act provides the power to make detention orders.
Sub-section (1) thereof empowers the State Government to make a detention
order.
Sub-section
(2) empowers the State Government to authorise a District Magistrate or a
Commissioner of Police to exercise the powers conferred by sub-section (1)
during such period as may be specified in the order not exceeding three months
at the first instance with power to extend such period from time to time by any
period not exceeding three months at any one time. Admittedly, the impugned
detention order was passed by the District Magistrate in exercise of powers
under section 2. Sub-section (3) is to the following effect:
121
"When any order is made under this section by an officer mentioned in
sub-section (2), he shall forthwith report the fact to the Government together
with the grounds on which the order has been made and such other particulars as
in his opinion, have a bearing on the matter, and no such order shall remain in
force for more than twelve days after the making thereof, unless, in the
meantime, it has been approved by the Government." Examining the records
we find that before the High Court in the Misc. case W.P.M.P.S.R. 51830 in the
form of an Additional Affidavit at para 11 it was urged:
"Apart
from the infirmities stated above which vitiate the order, statutory
requirement of reporting to the Government and obtaining approval of the
Government within the prescribed time has not been complied with." In the
counter affidavit filed by the Collector and District Magistrate in the High
Court to the writ petition as well as the W.P.M.P., there was no reply to para
11 of the W.P.M.P. and it was nowhere stated that the detention order was
approved by the State Government. In this Court in the Special Leave Petition
Ground No. V is as follows:
"The
Hon'ble High Court has erred in not noting the infirmity in the order of
detention inasmuch as the approval of State Government of Andhra Pradesh for
the order of the detention made by the District Magistrate, Cuddapah was not
obtained within the period of 12 days as enjoined under sub-section (3) of section
3 of the Act. The order is therefore non est in law." In the Counter
Affidavit of the Collector and District Magistrate there was not even a whisper
in denial of this fact.
The
learned counsel for the respondents at the heating could not deny before us
that the detention order had not been approved by the Government within 12
days. On his request time was granted to produce materials. He has now filed
reply affidavit on behalf of the respondents to the rejoinder affidavit filed
by the appellant. Scanning this affidavit also we do not find any statement
that the detention order was approved. Though the learned counsel submits that
it was 122 approved, in view of the above affidavits it cannot be acted upon.
We have, therefore, no other alternative than to hold that the detention order
had not been approved by the State Government within 12 days of its being made.
The result is that the order could not claim in force more than 12 days after
making thereof and as such must be treated as to have ceased to be in force and
non-existent thereafter.
Mr. Bhandare
then submits that the case of the appellant was not at all referred to the
Advisory Board under section 10 of the Act. This too has not been denied by the
learned counsel for the respondents. Section 10 of the Act provides for
reference to the Advisory Board and says:
"In
every case where a detention order has been made under this Act, the Government
shall within three weeks from the date of detention of a person under the
order, place before the Advisory Board constituted by them under section 9, the
grounds on which the order has been made and the representation, if any, made
by the person affected by the order, and in the case where the order has been
made by an officer, also the report by such officer under sub-section (3) of
section 3." Section 11 of the Act prescribes the procedure for the
Advisory Board. Under sub-section (1) of section 12, in any case where the
Advisory Board has reported that there is, in his opinion sufficient cause for
the detention of a person, the Government may confirm the detention order and
continue the detention of person concerned for such period not exceeding the
maximum period specified in section 13 as they think fit. Under sub-section (2)
thereof in any case where the Advisory Board has reported that there is, in his
opinion, no sufficient cause for the detention of the person concerned, the
Government shall revoke the detention order and cause the person to be released
forthwith. Thus section 10 makes it mandatory for the Government to place the
ground on which the order has been made and the representation, if any made by
the person affected by the order and in the case where the order has been made
by an officer also the report by officer under sub-section (3) of section 3.
This section prescribes a period of 3 weeks from the date of detention
irrespective of whether the person continues to be in detention or not.
Therefore, even though the detenu was released, if the detention order was in
force, his case was required to be placed before the Advisory Board. This being
a mandatory provision and having not been complied with the detention order
even if 123 otherwise it was in force, cannot be said to have been in force
after three weeks. Under Article 22 of the Constitution of India a person cannot be kept in
detention beyond three months without referring his case to an Advisory Board
under the appropriate law. In either case the appellant's case having not been
referred to an Advisory Board the detention order cannot be said to have
remained in force after the statutory period. It is, therefore, not necessary
to go into the validity or otherwise of the grounds of detention.
In the
result we set aside the impugned Judgment of the High Court and hold that the
detention order ceased to be in force after 12 days of making thereof and even
if it was in force it ceased to be in force for failure to refer the
appellant's case to Advisory Board within the time prescribed by law; and
accordingly we quash the same. The appeal is accordingly allowed.
After
the Judgment was finalised, another affidavit on behalf of the respondents
affirmed by one belonging to the office of the Advocate-on-Record has been
circulated. This affidavit is not acceptable. Even if it was accepted it would not
affect the ultimate legal position.
R.S.S.
Appeal allowed.
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