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TMI Blog1974 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the maintenance of supplies and services essential to the community' the direction for detention under S. 3 of the Act was being made, impeccably adhering to the mantra of the law. The, grounds which induced the authority's satisfaction were concomitantly furnished as required by S. 6(1), read with s. 3(2), of the Act. "You are being detained" runs the communication .... on the grounds that you have been acting in a manner prejudicial to the supplies and services essential to the community as evidenced by the particulars given below :--" Three specific instances were set out of November 21, 1971, November 24, 1971 and January 13, 1972-all over seven months prior to the detention order alleging that the petitioner and his associates (not named) broke open wagons and 'looted' wheat and tea. There is also a statement that 'the said activity of yours thus attracts Sec. 3 (1) (a) (iii) of the ... Act." It is a trifle mystifying that the detention order is passed many months after the three criminal break-ins, and equally strange it is that the prisoner is arrested only on February 22, 1973, many months after the order of detention was passed, there being no justification of absco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu also mentions certain relevant and injurious circumstances relating to the petitioner, which may be extracted here : "The subject Bhut Nath Mete s/o L. Sambhu Nath Mete of Belari, P.S. Ausgram, Dist. Burdwan, was born in a poor family. He got no education in his childhood. He worked is a day labour. He used to mix up with the notorious wagon breakers and antisocial elements. This inspired in him the criminal propensities which shaped his future career. But to his association with the railway criminals and antisocial elements he developed the spirit of lawlessness and acquired special aptitude for anti-social activities and acts prejudicial to the maintenance of supplies and services essential to +the community. For fear of assault and manhandling one of the local people dare to say anything against him and his associates to the Police or to any authority as a result of many cases remain unreported to the Police. Besides many of the reported and unreported cases some of the instances of his recent anti-social and criminal act wish were prejudicial to the maintenance of the supplies and services essential to the community are mentioned below. . . . " It is apparent,-and inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act liberally interpreted-within legitimate limits. The worth of the human person is a cherished value carefully watched over by the Court. Such is the judicial perspective in the application of art. 22 to the MISA, which it contains, controls and animates. Indeed, this Court. by a series of creative pronouncements has built into vast powers vested in the Administration by the MISA and its predecessors legal bulwarks, breakraters and blinkers which have largely humanised the harsh authority over individual liberty otherwise exercisable arbitrarily by executive fiat. In this case, we, are concerned with a limited canvass, for, in a sense, the court's control through review is peripheral,. processor and yet crucial. The area of judicial 'embudsmania' which obtrudes into our attention in the present case relates to the observance- of natural justice to the partial but compulsory extent the law of the Constitution and the law under the Constitution, obligate. There is a limited 'judicialisation' of administrative acts that art. 22 insists on, which is express, explicit and mandatory and admits of no exceptions. Article 22(5) is principled and pragmatic, flexible but firm and enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person detained, subject of course to a claim of privilege under clause (6) of article 22."(1). The strict construction of the statute setting the court's face sternly against encroachment on individual liberty, keeping the delicate balance between social security and citizens' freedom, is perfectly warranted by this Court's observation in Kishori Mohan Bera v. State of West Bengal(A. 1. R. 1972 S. C. 1749) "The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts. Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally, also, the power conferred by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law." In a sense this approach is only an application of the insistence of fairness when power is exercised to effect other's rights, particularly the most sensitive of all rightspersonal freedom. Natural justice is the index of fairness, although as Sachs, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g been made with ulterior and extraneous purpose of making up for the discharge of the petitioner in the, criminal cases; (4) that a few acts of theft, not proximate in time to the detention order after judicial proceedings had failed, have no rational relation to potential prejudicial activities to stanch which it professes to have been made; (5) that the materials impelling the detention order and supplied to the Government and the, Board add substantially to the facts disclosed to the detenu thus hitting him below the belt and denying him the plenary opportunity to answer the uncommunicated but damaging charges with a futuristic import; (6) that the MISA violates art. 22(5) and is unconstitutional; and (7) that the detention has been arbitrary and may continue indefinitely if the Proclamation of Emergency becomes a constant fact of constitutional life and must therefore be regarded as unconstitutional. The last two were urged in another habeas corpus application heard shortly before this one and are dealt with in a way here also. We have to reject summarily the last Submission as falling outside the orbit of judicial control and wandering into the para-political sector. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point in these words : "The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency." of course, the British have no written constitution but the argument remains. In the recent ruling of the Privy Council in Hinakan v. Government of Malaysia([1970] A. C. 379; 390; 391), the vires of a proclamation of emergency was put in issue as unconstitutional and a fraud on power. The Judicial Committee made short shrift of the submission in these words : "Although an "emergency" to be within the article must be not only grave but such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, epidemics and the collapse of civil government." "It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the constitutional situation which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) is stultified. No doubt, the soul of art. 22 is the fair chance to be heard on all particulars relied on to condemn the detenu to preventive confinement. But s. 3(3) does notcannot- transcend this trammel and never states that particulars conveyed to Government and eventually to the Board may be behind the back of the detenu. Reading the provisions literally and as owing allegiance to art. 22(5), it is right to say that all particulars transmitted under s. 3(3) beyond the grounds of detention must, if they have a bearing on the determination to detain, in no way detract from the effectiveness of the detenu's right of representation about them. The guarantee of art. 22(5) colours the construction of s. 3. So viewed, there is no inconsistency with or erosion of the 'opportunity of making a representation against the order. Whether, in this case, any unconstitutional deficiency in communication of such material has occurred: will be tested later. Is there any substance in the grievance that order is malafide, made after and on account of the discharge of the relative criminal cases ? The detention is not punitive but preventive and the District Magistrate's order recites to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now that the appellant was tried and acquitted months before, and considers the pendency of the case against him as one of the grounds of detention shows that due care and attention is not being paid to such serious matters as detention without trial. If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not. One can understand the use of the case if the acquittal was technical but not when the case was held to be false." After all, however well-meaning Government may be, detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse. To detain a person after a court has held the charge false is to expose oneself to the criticism of absence of due care and of rational material for subjective satisfaction. After all, the responsible officer, aware of the value of civil liberty even for undesirable persons, must make a credible pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or has participated in the process of approval by Government-not one who, long later, reads old files and gives its gist to the court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty. In some cases where a valid reason for the District Magistrate's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary's affidavit. This should, however, be the exception, not the rule. We may refer in this context to the rulings in Ranjit Dam v. State of West Bengal, (A. I. R. (1972) SC 1753), J. N. Roy v. State of West Bengal, (A. I. R. (1972) SC 2143) and Shaik Hanif and others v. State of West Bengal.( Writ Petitions Nos. 1679 etc; judgment on February 1, 1974.) We need not proceed further with this aspects, in the ultimate view we take on this writ petition. We are not persuaded that a speaking order should be passed by Government or- by the Advisory Board while approving or advising continuance of detention although a brief expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detainee to explain his innocence. Faceless informers flourish where confrontation by cross examination is absent, and orders with the inscrutable face of a sphinx are not uncommon where subjective satisfaction is sufficient. All the more reason why there should be a meaningfull comprehensive furnishing of essential particulars so that the executive agencies may be rigorously held to the standards implied by the courts in art. 22(5). Otherwise, in the language of Justice Frank further, "he that takes the procedural sword shall perish with that sword." Administrative absolution is incongruous with our constitutional scheme. If control of liberty in an emergency-Barbed-wire entanglements of freedom by the executive--is necessary. control of control is in some measure healthy because power in the minions of government can be 'of an encroaching nature'. Reference was made at the bar in this context to Allen's "Law and Orders", and Markose's "Judicial Control of Administrative Action"- In the petitioner's case the gravamen of his 'grievance is that some irrelevant and uncommunicated charges have influenced the authority, vitiating the order. We would not view with unconcern violati ..... 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