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TMI Blog1952 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner :Bawa Shiv Charan Singh For the Respondent: M.C. Setalvad, Attorney-General for India, Jindra Lal JUDGMENT DAS J. - This is an application under article 82 of the Constitution for the issue of a writ in the nature of habeas corpus and for the immediate release of the petitioner who is alleged to have been kept in illegal detention in Baroda Central Prison. On February 15, 1951, the petitioner was arrested under an order made on February 13, 1951, by the then District Magistrate, Surat, in exercise of powers conferred on him by the Preventive Detention Act, 1950. A copy of the said order was served on the petitioner at the time of his arrest. On the same date grounds of detention were served on the petitioner as required by section 7 of the Act. It was specifically mentioned in the grounds that it was not in the public interest to disclose further facts. The petitioner moved the High Court of Bombay under article 226 of the Constitution complaining that his detention was illegal and praying that he should be forthwith released. In that application one of the points urged was that the grounds in support of the detention were false, vague and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be detained by the State in exercise of powers conferred on it by the Preventive Detention Act, 1950, as amended in 1951. The State must, accordingly, satisfy us that the procedure established by law has been strictly followed. Although a supplementary petition has been filed in this Court complaining that the grounds supplied to him are false, vague, lacking in particulars and insufficient to enable the petitioner to make an effective representation against the order of detention, it has not, however, been pressed before us by learned counsel appearing as amicus curiae in support of the application. At the hearing before us, learned counsel has confined his arguments to challenging the validity of detention of the petitioner on two grounds, namely, (1) that the State Government has failed to comply with the requirements of section 11(1) of the amended Act in that at the time of confirming the detention order it omitted to specify the period during which the detention would continue, and (2) that the order of confirmation is not in proper legal form, in that it is not expressed to be made in the name of the Governor as required by article 166 (1) of -the Constitution. Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the detenu will be detained indefinitely. It is suggested that if two constructions are possible, the one that advances the interests of the subject should be adopted. I do not think that two constructions are possible at all or that the suggested construction will be of any advantage to the detenu for reasons which I proceed to state briefly. There can be no two opinions that detention without trial is odious at all times and that it is desirable, therefore, in cases of preventive detention that a definite period of detention should, if possible, be specified. But whether the Act, on a true construction of it, requires such a specification of period is an entirely different question and to answer that question regard must be had to the actual language used in the Act. If the intention of Parliament were that the period during which the detention would be continued must be specified then the sub-section 11 (1) would have empowered the appropriate authority to continue the detention for such "period as it thinks fit to specify" instead of "as it thinks fit". Further, the notion that nonspecification of the period will continue the detention for an indefinite period need not oppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the section, by itself and on a true interpretation of it, permitted an indefinite detention. In the second place, this argument was met by the Court, not by saying that that was not the correct meaning of the section and that on the contrary the words "such period" necessitated the fixation of a definite period of detention but, by saying that the life of the Act being limited, the duration of detention permitted by the section was in any event co-terminous with the life of the Act and could not go beyond it. This answer of the Court makes it clear that the Court fully recognised that the section, by itself and on its true interpretation, sanctioned an indefinite detention but held that that contingency had been averted by the fact that the Act itself was of a limited duration. It is said that the section should be construed irrespective of whether it occurs in a temporary statute or a permanent one, and it is urged that if the statute were a permanent one the section, on the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J. in the following passage in his judgment in S. Krishnan v. The Static of Madras (suprat) at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appropriate Government from directing the detention of a person to continue further so long as the period fixed by the previous order has not expired and the person has not been released. According to this decision the appropriate Government may direct the detention to continue even after the expiry of the period fixed by the order confirming the detention order or any subsequent order provided such directions are given before the expiry of the period fixed by the immediately preceding order. From what source does the appropriate Government derive its power to direct the further continuation of the detention after having, in the order of confirmation, once specified the period of detention ? Section 13 of the Act gives power to the appropriate Government to revoke or amend a detention order which must mean the initial order of detention under section 3 of the Act but not an order made under section 11 (1) confirming a detention order or fixing a period of detention. Therefore, the authority to extend the period of detention previously fixed which, in view of our decision, must be held to exist, will have to be derived from the very words "may continue such detention for such per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, on a proper construction of section 11 (1), a specification of the period of continuation of the detention is not necessary, however desirable one may consider it to be. Ground No. 2: On this head the argument of learned counsel for the petitioner is that no valid order of confirmation has been made in proper legal form at all and that a confidential communication from the Home Department to the District Magistrate cannot be regarded as an order under section 11(1)of the Act. Learned Attorney-General urges that section 11 (1) of the Act contemplates only the taking of an executive decision, namely. the confirmation of the detention order and contends that the sub-section does not contemplate the making of a formal order. He draws our attention to section 3 of the Act which expressly refers to an order of detention and points out that section 11 (1) does not refer to any order of confirmation. Reference may, however. be made to section 13 which authorises the appropriate Government to revoke or modify the order of detention. In this section also there is no reference to any order of revocation or modification but nevertheless revocation or modification must imply an executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive decision in the form mentioned in article 166 does not make the decision itself illegal, for the provisions of that article, like their counterpart in the Government of India Act, are merely directory and not mandatory as held in J.K. Gas Plant Manufacturing Co. (Rampur) Ltd. and Others v. The King-Emperor ([1947] F.C.R. 141 (154-9)). In my opinion, this contention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. The considerations which weighed with their Lordships of the Federal Court in the case referred to above in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue; and an omission to state the period vitiates the order. The other contention raised is that the order of confirmation not being expressed to be made in the name of the Governor, as is required under article 166 (1) of the Constitution, is void and inoperative. So far as the first ground is concerned, it would be necessary to advert to the language of section 11 (1) of the Preventive Detention Act which runs as follows :- "11. Action upon the report of Advisory Board'(Vide Makhan Singh Tarsikka v. The State of Punjab, Petition No. 308 of 1951) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit." It is to be noted that section 3 (1) of the Preventive Detention Act under which the initial order of detention is made is worded differently in this respect and it merely empowers the Central Government or the State Government, as the case may be, to make an order, under the circumstances specified in the section, directing that a person be detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y opinion, section 13 of the Act gives very wide powers to the detaining authority in this respect and it can revoke or modify any detention order at any time it chooses and the power of modification would certainly include a power of extension of the period of detention, provided such power is exercised before the period originally fixed has expired and provided the extended period does not exceed the over-all limit which is coextensive with the life or duration of the Act itself. This is quite in accordance with the view taken by this court in Chakar Singh v. The State of Punjab(Petition No. 584 of 1951). The question now is whether the omission to state the period of further detention while confirming the detention order under section 11 (1) of the Preventive Detention Act makes the detention illegal ? The point is not free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952. and has only been recently extended to a further period of six months. and no detention under the Act can continue after the date of expiry of the Act, I am inclined to hold that non-specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu. The other question for consideration is, whether the order is invalid by reason of the fact that it has not been expressed in the manner laid down in article 166 of the Constitution. Article 166 runs as follows :-"166 (1). All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." In the case before us the order confirming the detention purports to be signed by Mr. G.K. Kharkar, for the Secretary to the Government of Bombay, Home Department. The affidavit fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. This would be clear from the provision of section 13 of the Act which empowers the detaining authority to revoke or modify a detention order any time it chooses. Neither revocation nor modification is possible without any order being made to that effect and yet section 13 like section 11 (1) does not speak of an order at all. The first contention of the Attorney-General therefore cannot succeed. The other contention raised by the learned AttorneyGeneral involves consideration of the question as to whether the provision of article 166 (1) of the Constitution is imperative in the sense that non-compliance with it would nullify or invalidate an executive action. The clause does not undoubtedly lay down how an executive action of the Government of a State is to be performed; it only prescribes the mode in which such act is to be expressed. The manner of expression is ordinarily a matter of form, but whether a rigid compliance with a form is essential to the validity of an act or not depends upon the intention of the legislature. Various tests have been formulated in various judicial decisions for the purpose of determining whether a mandatory enactment shall be considered direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule IX of the Government of India Act came up for consideration and the provision was held to be directory and not imperative. Even ii clause (1) of article 166 is taken to be an independent provision unconnected with clause (2) and having no relation to the purpose which is indicated therein, I would still be of opinion that it is directory and not imperative in its character. It prescribes a formality for the doing of a public act. As has been said by Maxwell (Maxwell on Interpretation of Statutes, pp. 379-80. 634), "where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words as directory only." In the present case the order under section 11 (1) of the Preventive Detention Act purports to be an order of the Government of Bombay and is signed by the officer who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not necessarily be expressed as required in article 166 (1) that these provisions were merely directory and not mandatory and had been substantially complied with. For a proper appraisal of these contentions it is necessary to set out the relevant provisions of the Constitution and of the Preventive Detention Act. Articles 22 (4) and (5) of the Constitution are in these terms :- "(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion Sufficient cause for such detention ............ (5) When any person is detained in pursuance of an order made under any law, providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order." Sections 3, 9, 10, 11 and 13 of the Preventive Detention Act pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it thinks fit" occurring in section 11 of the Act. The words have to be given their plain meaning irrespective of the circumstance that they occur in a temporary statute and have to be construed in the same manner if they occurred in a permanent statute. It has been held by this Court in Makkan Singh Tarsikha v. State of Punjab, Petition No. 308 of 1951, that fixing of the period of detention in the initial order of detention under section 3 is contrary to the scheme of the Act inasmuch as such a construction tends to prejudice the case of the detenu when placed before the Advisory Board. It was emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. The language employed in section 11 of the Act is different from the language of section 3 and to my mind, this difference indicates a contrary intention. The words "such period as it thinks fit" have the meaning that government has to specify and fix the period of such detention. If these words were construed in the manner suggested by the learned Attorney-General, it will lead to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duration of the detention, the section, in my view. would have been drafted differently. There was no necessity to use the words:for such period as it thinks fit" therein at all. The intention would have been well expressed if the section was worded as follows:- "The appropriate Government may confirm the detention order". It was on these lines that rule 26 of the Defence of India Rules was drafted and the same was the scheme of Regulation III of 1818. The warrant to the jailer in the regulation directed him to receive the person into custody and to deal with him in conformity with the orders of the Governor-General. The same phraseology could have been employed in section 11. It has been held by this Court in Chakkar Singh v. The State of Punjab (Petition No. 584 of 1951), that the power of the detaining authority under section 11 is not exhausted once it specifies the period of detention but that it can, before the expiration of the period initially fixed, direct the detention of a person to continue for a further period I took this view for the simple reason that it was in accord with the provisions of the General Clauses Act which provide that the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady observed, the new Act is to be in force only up to 1st April. 1952, and no detention under the Act can continue there after the discretionary power could be exercised only subject to that over-all limit." In the same case while upholding the validity of section 11, I made the following observations :-- "It may be pointed out that parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention 'for those detained under this law." The point for decision in that case was whether it was necessary while enacting the Preventive Detention Act to fix a maximum period for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicit in the language of the section itself. Confirmation of an order already passed can only be by making an order. The section in another part provides for the revocation of an order. Revocation of an order again can only be made by passing an order of revocation and cannot be done by any other process. Section 13 provides not only for revocation of an order but for modification of the order of detention. It is obvious that the modification of an order is only possible by passing a fresh order and not in any other manner. No particular significance can attach to the omission of the words ' 'make an order" in section 11. The word ' 'order" has numerous meanings but the meaning relevant in the present context is "decision". It also means "an authoritative direction or mandate". It cannot be contended that Government can confirm or continue the detention without taking a decision or issuing a direction. Such a decision or direction is tantamount to an order. I am therefore clearly of the view that it is the intention of the law that when the report of the Advisory Board reaches the Government, it has to come to a decision and pass an order in accordance with that decision against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Part IV of the Code of Criminal Procedure relating to prevention of offences. In sections 106 to 110 of this Part the language employed is "a person can be called upon to execute a bond for his good behaviour etc. for such period not exceeding one year or three years as the Magistrate thinks fit to fix." It is not possible to argue that the magistrate can call upon a person to execute a bond without fixing a period for which that bond is to be good, and that in the absence of such determination it has to be presumed that the bond has to be executed for the maximum period mentioned in the section. In my opinion, failure to fix the period for which the bond is to be operative would make the order ineffective. and any default on the part of the person called upon to give the bond would not be punishable. The discretion given to Government by the phrase "as it thinks fit" is limited by the duty imposed on it by the provisions of the section. The next question that falls to be determined and which is of some difficulty, is whether failure to fix the period makes the detention illegal. After considerable thought I have reached the conclusion that the nondetermination by Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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