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TMI Blog1951 (1) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in promoting acts of sabotage on railway and railway property in Greater Bombay." The respondent filed a habeas corpus petition on the 31st of July, 1950, in which, after reciting his previous arrest and release, in paragraphs 6 and 7 he mentioned as follows :-- "(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi. (7) On 20th April, 1950, he returned to Bombay and was immediately arrested as stated above." He contended that the sole aim of the Government in ordering his detention was not the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All-India Trade Union Congress. He contended that the ground is "delightfully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it." He further urged that the ground gave no particulars and therefore was not a ground as required to be furnished under the Preventive Detention Act, 1950. He stated that the present appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant's detention in any event was il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against public interest. In para. 6 there was a specific denial that the respondent, after his release in November, 1949, and till 20th April, 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay. When the matter came up before a Bench of the High Court the respondent's petition was granted. In the judgment of the Court, Chagla C.J. observed: "It is clear by reason of the view we have taken in several cases under section 491 of the Criminal Procedure Code, that this is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitution." After noticing the affidavit of the Commisioner of Police, it was further observed: "We appreciate the fact that, after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was not any ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant's detention. We have looked at this af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting preventive detention and as and when such requirements are not observed the detention, even if valid an initio, ceases to be "in accordance with procedure established by law" and infringes the fundamental right of the detenue guaranteed under articles 21 and 22 (s) of the Constitution. In that way the subject of preventive detention has been brought into the chapter on Fundamental Rights. In the 3resent case we are concerned only with clauses (5) and (6) of article 22 which run as follows:- 22. "(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 ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose." It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to determine if it would have came to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government. An order having been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person a right to ask for particulars, nor does it give the authorities any right to supplement the grounds, once they have furnished the same. In our opinion much of the controversy is based on a somewhat loose appreciation of the meaning of the words used in the discussion. We think that the position will be clarified if it is appreciated in the first instance what are the rights given by article 22 (5). 'The first part of article 22, clause (5), gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such persons is of being afforded "the earliest opportunity of making a representation against the order." It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onally bound up and connected with the right to make the representation. Although these two rights are thus linked up, the contingency of further communication between the furnishing of the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is not altogether excluded., One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenue there can be no addition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of article 22 (5), as those grounds for the order of detention were not conveyed to the detained person "as soon as may be." This however does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;earliest opportunity" separately, indicating two distinct time factors, one in respect of the furnishing of grounds and the other in respect of the making of the representation, the contingency of a second communication after the grounds are furnished, is not excluded. However, the second communication should not be liable to be charged as not being within the measure "as soon as may be ". Secondly, it must not create a new ground on which satisfaction of the Government could be suggested to have been arrived at. In our opinion, if these two conditions are fulfilled, the objection against a later communication of details or facts is not sufficient to cause an infringement of the provision made in article 22(5). The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenue to make a representation, i.e., to give him an opportunity to put forth his objections against the order of detention. Moreover, "the earliest opportunity" has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is argument is unsound. Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the footing that there is some connection, i.e., the ground by itself is not so convincingly irrelevant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the court. On the other hand, the question whether the vagueness or indefinite nature of the statements furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the court's inquiry and subject to the court's decision. The analogy sought to be drawn between a ground which can have no connection whatsoever with the order and a ground which on its face has connection with the order but is not definite in its statement, is clearly faulty. The extreme position, on the other hand, that there is no connection between the ground to be furnished and the representation to be made by the detained person under article 22 (5) is equally unsound, when the object in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne is neither proper according to the language used, nor according to the purpose for which the rights are given. The contention that the grounds are vague requires some clarification. What is meant by vague ? Vague can be considered as the antonym of 'definite'. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rights mentioned in article 22 (5) of the Constitution. This detailed examination shows that preventive detention is not by itself considered an infringement of any of the fundamental rights mentioned in Part III of the Constitution. This is, of course, subject to the limitations prescribed in clause (5) of article 22. That clause, as noticed above, requires two things to be done for the person against whom the order is made. By reason of the fact that clause (5)forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid. While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation, which obligations, as shown above, are correlated, there exists no express provision contemplating a second communication from the detaining authority to the person detained. This is because in several cases a second communication may not be necessary at all. The only thing which emerges from the discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to emphasize that the communication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be disclosed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation from the intention underlying article 22 (5) of the Constitution. The result of this attitude of some detaining authorities has been that, applying the tests mentioned' above, several communications to the detained persons have been found wanting and the orders of detention are pronounced to be invalid. Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is correct. We have already pointed out that the summary rejection by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenue when the grounds are first communicated, is not sound. We have indicated the circumstances and conditions under which the later communication may or may not be considered as falling within the purview of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause (1) [1950] S.C.R. 88. to disclose facts which such authority considers to be against the public interest to disclose. If this procedure is not complied with, detention under the Act may well be held to be unlawful, as it would then be deprivation of personal liberty which is not in accordance with the procedure established by law. The question accordingly arises as to what are the requirements of article 22 (5) and whether they have been complied with in the present case ? On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be detained, namely, that (1) the grounds of his detention should be communicated to him as soon as may be, and (2) he should be given the earliest opportunity of making a representation against the order. As there is to be no trial in such cases, the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiency of the materials on which such satisfaction was grounded ......... The court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquillity, for "satisfaction" in this connection must be grounded on material which is of rationally probative value"-Machindar Shivaji Mahar v. The King (2). These decisions clearly establish, what indeed is plain from the nature of the measure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, no recourse being permitted to a court of law by way of review or justification of such action except on allegations of mala fides or irrational conduct. (1) [1917] A.C. 260, 269. (2) [1949-50] When the power to issue a detention order has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its "satisfaction", which is a purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an order being "satisfied" on such information, however lacking in particulars, that a person should be detained in the public interest, as they have been empowered by Parliament to do, then all that article 22 (5) requires of them is to communicate as soon as may be the grounds which led to the making of the order, to the person concerned, and to give him the earliest opportunity of making any representation which he may wish to make on the basis of what is communicated to him. If such communication is made and such opportunity is given the detaining authority will have complied with the procedure prescribed by the Constitution, and the person under detention cannot complain that he has been deprived of his personal liberty otherwise than in accordance with the procedure established by law. I can find nothing in article 22, clause (5), to warrant the view that the grounds on which the order of detention has been made must be such that, when communicated to the person detained they are found by a court of law to be sufficient to enable him to make what the court considers to be an adequate representation. The right to be produced before a Magistrate and to consult a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient to enable the said person to make a representation. It is worthy of note that in the well-known English case of Liversidge v. Anderson C), the existence of a (1) [1942] A.C. 206. similar privilege was regarded as a "very cogent reason" for holding that the words "If the Secretary of State has reasonable cause to believe" did not raise a justiciable issue as to the existence of such cause as an objective fact. Viscount Maugham observed "It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not ad rem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain to those responsible in advising His Majesty in regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be made' against the order, and though the sufficiency of the Grounds on which the order was based had been held not to be open to judicial examination, there was no reason why the sufficiency of the further communication implied in the provision for representation should not be justiciable. The different time-limits fixed for -he performance of the duties imposed by clause (5) on the detaining authority are said to support this argument. The construction suggested is, in my opinion, strained and artificial and cannot be accepted. The collocation in the same clause of the right to be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds communicated are to form the basis of the representation and, indeed, are intended mainly, if not solely, for that purpose. To suggest that, apart from those grounds, and right of making a representation imports, by necessary implication, a further obligation to give such details and particulars as would render that right effective is, in my opinion, not to' construe the clause in its natural meaning but to stretch it by the process of implication, so as to square, with o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court in Ishwar Das v. The State(1) as an instance where this court considered the grounds of detention to be vague and directed the release of the petitioner in that case from detention under the Act. As pointed out in the brief judgment in that case, no arguments were addressed on the point and the case was disposed of on the view prima. facie supported by the decisions already referred to that, if the grounds were too general and vague to enable the person under detention to make a representation, he was entitled to be released. No value can therefore be attached to that decision as a precedent. In the course of the debate it was repeatedly urged that this court should be jealous in upholding the liberty of the subject which the Constitution has guaranteed as a fundamental right and must not adopt a construction of article 22 (5) which would rob the safeguards provided therein of all their efficacy. I am profoundly conscious of the sanctity which the Constitution attaches to personal liberty and other fundamental rights and of the duty of this court to guard against inroads on them by the legislature or the executive. But when, as has been stated, the Constitution itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual mental approach of the person who is the authority to (11) Reported infra at p. 212 (1) Reported infra at p.212. make the detention order. The authority concerned may be a person who will not derive the requisite satisfaction except on very precise and full information amounting almost to legal proof or he may be a person equally honest who will be so satisfied on meagre information which may appear to others to be very vague or even nebulous. If the authority is a person of the first mentioned type, then the "grounds" on which he will make the order will necessarily be more precise and fuller in particulars than the "grounds" on which an order may be made by the authority who is a person of the second mentioned type. The "grounds" on which the authority who is a person of the first mentioned type makes an order of detention create no difficulty, for such grounds are quite precise and ample, and, when communicated to the detenu, will clearly enable him to appreciate the reasons for his detention and to make his representation. We are, however, concerned with the "grounds" on which an order of detention may be made by the authority who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article 22 (5) is not left to the subjective opinion of the authority which makes the order of detention but an objective test is indicated, namely, that the grounds must be such as will enable the detenu to make a representation which quite clearly makes the matter justiciable. If the court finds that no representation may be made on account of the vagueness of the grounds. the court must also hold that the order made on such vague grounds cannot be sustained. The next step in the argument is that the provisions of the Preventive Detention Act, 1950 (Act IV of 1950), which was passed after the Constitution came into effect must be read in the light of article 22 (5) as construed above. So read, the satisfaction of the authority referred to in section a of the Act cannot be the subjective satisfaction of the authority, for the satisfaction must be founded on grounds which, when communicated later on, will enable the detenu to make a representation which postulates an objective test. This involves that section 3 (1) (a) of the Act should be read as if the words "on grounds which, when communicated to him, will enable him to make a representation such as is mentioned in section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of proof of bad faith, be questioned at all and that section 3 was not unconstitutional. It is true that the arguments now advanced were not advanced in exactly the same form on that occasion, but that fact makes no difference, for the arguments have no force as they are founded on the assumption that the grounds on which an order may be made must be such as will, when communicated, be sufficiently full and precise so as to enable the detenu to make a representation. I find no warrant for such an assumption. Indeed, the fact that this court has held that section 3 of the Act which makes the satisfaction of the authority a purely subjective matter is not unconstitutional clearly destroys the cogency of the argument formulated as hereinbefore stated. The decision in Gopalan's case(1) as to the validity of section 3 of the Act makes it impossible to accept this argument. It is next urged that even if the initial order was not invalid when made because satisfaction was a purely subjective matter for the authority alone and the court cannot consider or pronounce upon the sufficiency of the grounds on which the satisfaction was based, nevertheless, the continuance of the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the (1) [1950] S.C.R. 88. detenu from that moment must be held to be deprived of his liberty otherwise than in accordance with procedure established by law and will, therefore, be entitled to be released. I am prepared to concede that there is some correlation between the two parts of article 22 (5), namely, the communication of the grounds on which the order has been made and the making of the representation by the detained person. The Constitution insists on the communication of the grounds on which the detention order has been made for some purpose. That purpose obviously is to apprise the detenu of the reasons for the order of his detention. The communication of the grounds will necessarily enable him, first, to see whether the grounds are at all relevant to the object sought to be secured by the Act. If they are not, then they were no grounds at all and no satisfaction could be founded on them. The very irrelevancy of the grounds will be a cogent proof of bad faith on the part of the authority so as to make the order itself invalid. In the next place, the disclosure of the grounds will tell the detenu in which class his suspected activities have been placed and whether he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid, if the vagueness is not proof of bad faith. Under clause (5) the authority is to communicate the grounds on which the order has been made. This will let the detenu know what operated on the mind of the authority when it made the order. If the grounds were vague it is the vague grounds that must be communicated, for it was upon those vague grounds that the order had been made. That is the express provision of the first part of clause (5). This being the express requirement, the implication that the grounds communicated must be sufficient to enable the detenu to make a representation cannot be read into the clause, for that will militate against the express requirement. If the order had been made on vague grounds but (1) [1950] S.C. R. 88. the authority is to communicate precise and well-formulated grounds which will be sufficient for the detenu to make a representation, then the communication will not be of grounds on which the order was made but of something more than what is expressly required. The express provision must exclude such an inconsistent implied provision. Again, clause (6)of article 22 gives the authority the right to claim privilege against disclosure of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they are vague, will satisfy the first obligation imposed upon the authority. Under the latter part of clause (5) the authority is also under the obligation to afford the earliest opportunity to the detenu to make a representation. If the grounds on which the order has been made were vague, then the second part of clause (5), independently and without reference to the first part of clause (5), impliedly imposes on the authority an obligation to rectify the defect of vagueness by supplying particulars so as to enable the detenu to make a representation. Supplying of particulars, the argument concludes, is implicit in the second part of clause (5), for without such particulars the detenu is not afforded the opportunity to make a representation. I am unable to accept this line of argument. Under the first part of clause (5) the grounds on which the order has been made have to be supplied 'as soon as may be.' The measure of time indicated by the words 'as soon as may be' must obviously run from the date of detention. Likewise, the latter part of clause (5) requires affording the detenu the earliest opportunity to make a representation. From what terminus a quo is the period indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation. is the authority to keep quiet and take the risk of the court releasing the detenu for the vagueness of the grounds or is he to tell the detenu "just wait a little; I think the grounds which I have communicated to you are quite precise and sufficient; lest you or the court find the grounds insufficient for making a representation, I shall supply you with further and better particulars so as to enable you to make the representation ?" The position thus stated is unreal on the face of it. In my opinion, on a plain reading of clause (5) there is no justification for assuming that a second communication of particulars is contemplated either under the first part or under the second part of clause (5). This does not, however, mean that the authority may not supply particulars either suo motu or on the application of the detenu. All that I say is that clause (5) imposes no constitutional obligation on the authority to supply particulars so as to remove the vagueness of the grounds or to enable the detenu to make a representation, and non-supply of further particulars does not constitute an infraction of any fundamental right. It is said that clause (5) of articl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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