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TMI Blog1943 (4) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... uences. It is, therefore, necessary to examine closely the facts of the case and the relevant statutory provisions which have been brought to our notice. 2. The appellant states that he was arrested by a police-officer on August 24, 1942, and detained in custody ; that on September 4 he was removed to the Thana jail; and that he learned later that an order had been made by the Bombay Government dated August 27, which is in the following terms :- Whereas the Government of Bombay has received a report from the Commissioner of Police, Bombay, that the person known as Keshav Talpade has been arrested and committed to jail custody under Sub-rules (1) and (2) respectively, of Rule 129 of the Defence of India Rules; And whereas the Government of Bombay is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it to necessary to make the following order; Now therefore in exercise of the powers conferred by Sub-rule (4) of Rule 129 read with Rule 26 of the said rules, the Government of Bombay is pleased to direct- (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, or abstain from doing, anything. 4. Counsel for the appellant contended that the Central Legislature had no power to enact the Defence of India Act, 1939, at all, because the " defence of India " is not to be found among any of the entries in Lists I, II, or III in the Seventh Schedule of the Constitution Act. This is no doubt true, and it is plain from various provisions of the Act that the executive authority of the Governor General with respect to defence extends beyond matters with respect to which the Central Legislature has power to make laws : see for example Sections 7, 8, 11 and 12 (or during the transitional period, before Part II comes into force, Sections 312 and 313). We need not enlarge on the general scheme of the Act, which is now well-known; it is sufficient to say that List I sets out a number of matters in respect of which the Central Legislature has an exclusive right of legislation, List II a list of matters in respect of which the Provincial Legislatures have a similar exclusive right, and List III a list of matters in respect of which the Central and Provincial Legislatures have a concurrent power of legislation. There are one or two entries whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This argument appears to us to be without any substance. If it can be shown that there are provisions in the Act of 1939 which are not covered by any of the entries in the Legislative Lists, then no doubt they will be open to challenge. It is, however, unnecessary in the present case that we should analyse for that purpose the Act and the Rules made under it since entry No. 1 of List I gives the Central Legislature in any event power to legislate with respect to preventive detention in British India for reasons of State connected with defence and certain other specified matters, and we see no reason why it is not permissible to treat any provisions with respect to this as severable from the rest of the Act and Rules even if all the latter are bad. We agree on this point with the High Court of Bombay. The High Court of Allahabad had substantially the same argument addressed to them and arrived at a similar conclusion in the case of Emperor v. Meer Singh [1941] All, 617, see especially the judgment of Braund J. 6. The Canadian and Australian cases cited on behalf of the appellant do not assist him. In those Dominions the subject of "defence" is a matter within the exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and the maintenance of peaceful conditions in tribal areas were added to the original rule by Notification dated August 3, 1940. It will be seen that there is nothing about hostile origins. "Reasonably suspected" implies the existence of suspicions for which there is reasonable justification : but by what test is the reasonableness of the justification to be determined ? Nothing is said in Rule 26 about suspicions, reasonable or otherwise, that the person concerned has acted, is acting, or is about to act in a prejudicial manner ; those who framed it thought it sufficient to provide that the Government should be satisfied that the detention is necessary with a view to prevent the person concerned from acting in a prejudicial manner. We are compelled therefore to ask ourselves two questions :. (1) whether "reasonably suspected" in the rule-making power means suspected on grounds which appear reasonable for the detaining authority or whether it means suspected on grounds which are in fact reasonable; and (2) whether a statutory power to make a rule for the detention of persons reasonably suspected of having acted, of acting, or of being about to act in a certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : If the Secretary of State has reasonable causle to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained. The rest of the regulation [Reg. 18B of the Defence (General) Regulations, 1939] contains provisions covering the same ground as the latter part of Rule 26 of the Defence of India Rules, and there can be no doubt that the draftsman of both the Indian Act and Rules had the English Act and Rules before him. But then is one very striking difference. Lord Macmillan, after quoting the terms of the regulation-making power on the subject of detention which has been cited above, observes (p. 252) : There could be no clearer evidence of the intention of Parliament to authorize the abrogation in the public interest and at the absolute discretion of the Secretary of State of the ordinary law affecting the liberty of the subject. A perusal of the whole act and of the subsequent Act of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief in the mind of any ordinary reasonable man ? Or does it mean that he must have such cause of belief as he himself deems to be reasonable ? To require that a cause of belief shall be reasonable necessarily implies a reference to some standard of reasonableness. Is the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State's own mind, or is it the personal standard of what the Secretary of State himself deems reasonable ? Between these two readings there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of State had - for his belief may, if challenged, be examined by a court of law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man and to enable the court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the form of his own conscience whether he has a reasonable cause of belief and he cannot, if he has acted in good faith, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to read the words as though they ran " the apprehension and detention in custody of any person reasonably suspected by the apprehending or detaining authority," that does not seem to us necessarily to imply that the. authority's own belief in the reasonableness of their suspicions is not open to challenge. It might well be argued that since the apprehending or detaining authority could be any person in India whom the Central Government chose to select when it framed its rules, it can never have been intended that any person could be detained without trial and by mere executive act unless there were reasonable grounds in fact for suspecting that he had brought himself within the scope of paragraph (x). 13. It will be said that the Central Government must be trusted only to make any rules vesting this power in responsible persons or authorities. The Central Government has in fact vested them in itself and in the Provincial Governments, that is to say, the Governor-General-in-Council and the Governor and those who advise him, whether Ministers or others. In the United Kingdom the number of persons detained under Regulation 18B, according to public statements made from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to preventing him from acting in a particular way it is necessary to detain him. The Government may come to the conclusion that it would be wiser to take no risks, and may therefore subject a person to preventive detention against whom there is no evidence or reasonable suspicion of past or present prejudicial acts, or of any actual intention of acting prejudicially; and Rule 26 gives it power to do so. We can find nothing in paragraph (x) which justifies a rule in such terms. The Legislature might have conferred upon the Central Government the power of making a rule as wide as this, but we are clear that it has not yet done so. A rule made under existing statutory powers can only confer a right to detain those persons who fall within the scope of paragraph (x), that is, persons reasonably suspected of the things mentioned in that paragraph. There is no power to detain a person because the Government thinks that he may do something hereafter or because it may think that he is a man likely to do it; he must be a person about whom suspicions of the kind mentioned in the paragraph are reasonably entertained. The Legislature having set out in plain and unambiguous language in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be in any event beyond the rule-making power which has been conferred, so far as regards the addition made to it by the Notification dated August 3, 1940; but having regard however to the view which we take of the rule as a whole, it is unnecessary for us to consider whether or to what extent the addition is severable from the rest of the rule. 15. We think it right to refer to certain observations made by one of the learned Judges (Chagla J.) in the Court below. He says this (p. 39 ante): As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in the Seventh Schedule. But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded. 16. We doubt wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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