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TMI Blog1965 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to his ,other grounds I will content myself only with the observation that as at present advised, I have not been impressed by them. The order of detention runs thus : Whereas 1, J. N. Sahu, District Magistrate, Patna, am satisfied that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order, it is necessary to make an order that he be detained. Now, therefore, in exercise of the powers conferred by clause (b) of sub-rule (1) of rule 30 of the Defence of India Rules, 1962 read with Notification No.180/COW I hereby direct that Dr. Ram Manohar Lohia be arrested and detained in the Contra Jail Hazaribagh, until further orders. Now the point made by Dr. Lohia is that this order is not in terms of the rule under which it purports to have been made and, therefore, furnishes no legal justification for detention. The reason why it is said that the order is not in terms of the rule is that the rule does not justify the detention of a person to prevent him from acting in a manner prejudicial to the maintenance of law and order while the order directs detention for such purpose. It is admitted that the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Tripura([1964] 3 S.C.R. 442.). I should now state that the Proclamation is still in force. It is not in dispute that the present petition has been made for the enforcement of Dr. Lohia's right to personal liberty under Arts. 21 and 22. These articles in substance-and it should suffice for the present purpose to say no more--give people a certain personal liberty. It is said by the respondent State that the President's Order under Art. 359(1) altogether prevents us from entertaining Dr. Lohia's petition and, therefore, it should be thrown out at once. This would no doubt, subject to certain exceptions to which a reference is not necessary for the purposes of the present judgment, be correct if the Order of November 3, 1962 took away all rights to personal liberty under Arts. 21 and 22. But this, the Order does not do. It deprives a person of his right to move a court for the enforcement of a right to such personal liberty only when he has been deprived of it by the Defence of India Act-it is not necessary to refer to the Ordinance any more as it has been replaced by the Act-or any rule or order made thereunder. If he has not been so deprived, the Order does not take aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into that question. Apart from the fact that the reasoning on which the English case is based, has no application here, we have clear observations in judgments of this Court which show that the Order of the President does not form a bar to all applications for release from detention under the Act or the Rules. I will refer only to one of them. In Makhan Singh v. The State of Punjab ([1964] 4 S.C.R. 797.) it was said, If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended and by way of illustration of this proposition, a case where a person was detained in violation of the mandatory provisions of the Defence of India Act was mentioned. That is the present case as the petitioner contends that the order of detention is not justified by the Act or Rules and hence is against its provisions. The petitioner is entitled to be heard and the present contention of the respondent State must be held to be ill founded and must fail. I now proceed to consider the merits of Dr. Lohia's contention that the Order detaining him had not been made under the Defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule for preventing disturbance of law and order. The rule does not say so. The order, therefore, would not be in terms of the rule unless it could be said that the expression law and order means the same thing as public order which occurs in the rule. Could that then be said? I find no reason to think so. Many of the things mentioned in the rule may in a general sense be referable to the necessity for maintaining law and order. But the rule advisedly does not use that expression. It is commonplace that words in a statutory provision take their meaning from the context in which they are used. The context in the present case is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression maintenance of law and order occurring in the detention order may not have been used in the sense of prevention of disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements in the affidavit used in the present case by the respondent State are, therefore, of no avail for establishing that the order of detention is in terms of the rule. The detention was not under the affidavit but under the order. It is of some significance to point out that the affidavit sworn by the District Magistrate who made the order of detention does not say that by the use of the expression law and order he meant public order. It was said that this was too technical a view of the matter; there was no charm in words used. I am not persuaded by this argument. The question is of substance. If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a court is prevented from going. I am not complaining of that. Circumstances may make it necessary. But it would be legitimate to require in such cases strict observance of the rules. If them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule. It is the only warrant for the detention. The order further is conclusive as to the state of the mind of the person who made it; no evidence is admissible to prove that state of mind. It seems to me that if the Carltona case was concerned with an order which alone resulted in the dispossession, the decision in that case might well have been otherwise. I would here remind, to prevent any possible misconception, that I am not considering a case where the order is challenged on the ground of mala fides or other similar grounds to which I have earlier referred. Before leaving this aspect of the case, it is necessary to refer to two other things. The first is a mistake appearing in the order of detention on which some argument was based by Dr. Lohia for quashing the order. It will be remembered that the order mentioned a certain Notification No. 180/CW. The Notification intended to be mentioned however was one No. 1115/CW and the Notification No. 180/CW had been mentioned by mistake. It was under Notification No. II 15/CW that the power of the State Government to make an 'order of detention was delegated to the District Magistrate under the provisions of s. 40(2) of the Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that it is. I have earlier stated that extraneous evidence is not admissible to prove that the rule has been complied with though the order of detention does not show that,. Indeed, this note does not even say that the District Magistrate was satisfied that it was necessary to make an order of detention to prevent Dr. Lohia from acting in a manner prejudicial to the maintenance of public order. It only says that the Superintendent of Police reported that he was so satisfied. The satisfaction of the Superintendent of Police would provide no warrant for the detention or the order; with it we have nothing to do. For these reasons, in my view, the detention order if it had been based only on the ground of prevention of acts prejudicial to the maintenance of law and order, it would not have been in terms of r. 30(1)(b) and would not have justified the detention. As I have earlier pointed out, however, it also mentions as another ground for detention, the prevention of acts prejudicial to public safety. In so far as it does so, 'it is clearly within the rule. Without more, we have to accept an order -made on that ground as a perfectly legal order. The result then is that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lohia be arrested by the police wherever found and detained in the Central Jail, Hazaribagh, until further orders. Sd/- J. N. Sahu, 9-8-1965 District Magistrate, Patna. Sd/- Ram Manohar Lohia. 10th August-1.40. Dr. Lohia was lodged in the Hazaribagh Central Jail at 3-30 p.m. on August 10, 1965. He sent a letter in Hindi together with an affidavit sworn in the jail to the Chief Justice, which was received on August 13, 1965, in the Registry of this Court. Although the petition was somewhat irregular, this Court issued a rule and as no objection has been taken on the ground of form we say nothing more about it. In his affidavit Dr. Lohia stated that he was arrested at midnight on August 9, 1965 and was told that it was on charges of arson but later was served with the order of detention and that in this way his arrest for a substantive offence was turned into preventive detention. He further stated that the order of detention showed that he was to be detained in Bankipur Jail but the name of the Jail was scored out and Central Jail, Hazaribagh was substituted which led him to conclude that typed orders of detention were kept ready and that the District Magistrate did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders, and that it was because of this that the words Central Jail Hazaribagh were substituted for Bankipur Jail . He denied that he had not considered the necessity of detention in each individual case. He repudiated the charge that the arrest was made at the instance of Government and affirmed that the action was taken on his own responsibility and in the discharge of his duty as District Magistrate and not in consultation with the Central or the State Governments. He denied that the arrest and detention were the result of anger on the part of any or a desire to prevent Dr. Lohia from circulating any damaging information about Government. The District Magistrate produced an order which, he said, was recorded before the order of detention. As we shall refer to that order later it is reproduced here 9.8.65. Perused the report of the Senior S.P., Patna, for detention of Dr. Ram Manohar Lohia, M.P., under rule 30 (1) (b) of the Defence of India Rules, on the ground that his being at large is prejudicial to the public safety and maintenance of public order. From the report of the Sr. S.P., Patna, I am satisfied that Dr. Ram Manohar Lohia, M.P., aforesaid be detained under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Article on November 3, 1962, Dr. Lohia's right to move the Supreme Court under Art. 32 of the Constitution is taken away during the period of emergency proclaimed under Art. 352 as long as the President's Order continues. On merits it is contended on behalf of the State of Bihar that the petition, if not barred, does not make out a case against the legality of the detention; that this Court cannot consider the question of good faith and that the only enquiry open to this Court is whether there is or is not an order under Rule 30(1)(b) of the Defence of India Rules 1962. If this Court finds that there is such an order the enquiry is closed because the petition must then be considered as incompetent. The State Government admits that the words of Rule 30(1)(b) and s. 3 of the Defence of India Act were not used in the order of detention but contends that maintenance of public order and maintenance of law and order do not indicate different things and that the area covered by maintenance of law and order is the same if not smaller than the area covered by the expression maintenance of public order. We shall go into the last contention more elaborately after dealing with the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e anything more than finding out whether there is an order of detention or not and the moment such an order, good on its face, is produced all enquiry into good faith, sufficiency of the reasons or the legality or illegality of the action comes to an end, for to go into such matters is tantamount to allowing the petitioner to move the court which the President's Order does not permit. He contends that the courts' power to issue a writ of habeas corpus in such cases is taken away as completely as if cl. (2) of Art. 32 made no mention of the writ of habeas corpus. According to him, an order under Rule 30(1)(b) proper on its face, must put an end to enquiry of any kind. In view of this objection it is necessary to state the exact result of the President's Order for this has not been laid down in any earlier decision of this Court. The President declared a state of grave emergency by issuing a Proclamation under Art. 352 on October 26, 1962. This Proclamation of Emergency gave rise to certain extraordinary powers which are to be found in Part XVIII of the Constitution, entitled Emergency Provisions. Article 358 suspended the provisions of Art. 19 during the Emergency an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by Arts. 21 and 22 is suspended and the second is that the deprivation must be under the Defence of India Ordinance (now the Act) or any rule or order made thereunder. The word thereunder shows that the authority of the Defence of India Act must be made out in each case whether the deprivation is by rule or order. It, therefore, becomes necessary to inquire what are the rights which are so affected ? This can only be found out by looking into the content of the Arts. 21 and 22. Article 21 lays down that no person is to be deprived of his life or personal liberty except according to procedure established by law. This article thinks in terms of the ordinary laws which govern our society when there is no declaration of emergency and which are enacted subject to the provisions of the Constitution including the Chapter on Fundamental Rights but other than those made under the powers 7 30 conferred by the Emergency Provisions in Part XVIII. When the President suspended the operation of Art. 21 he took away from any person dealt with under the terms of his Order, the right to plead in a court of law that he was being deprived of his life and personal liberty otherwise than accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory requirements. The provisions of Art. 22 would have applied to arrest and detentions under the Defence of India Act also if the President's Order had not taken away from such a person the right to move any court to enforce the protection of Art. 22. The net result of the President's Order is to stop all claims to enforce rights arising from laws other than the Defence of India Act and the Rules and the provisions of Art. 22 at variance with the Defence of India Act and the Rules are of no avail. But the President's Order does not say that even if a person is proceeded against in breach of the Defence of India Act or the Rules he cannot move the court to complain that the Act and the Rules, under colour of which some action is taken, do not warrant it. It was thus that this Court questioned detention orders by Addi- tional District Magistrates who were not authorised to make them or detentions of persons who were already in detention after conviction or otherwise for such a long period that detention orders served could have had no relation to the requirements of the Defence of India Act or the Rules. Some of these cases arose under Art. 226 of the Constitution but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een published brought an action, claiming inter alia that the order was made and confirmed wrongfully and in bad faith on the part of the clerk. Paragraph 16 of that Act provided Subject to the provisions of the last foregoing para.graph, a compulsory purchase order shall not ...... be questioned. in any legal procceding whatsoever The House of Lords (by majority) held that the jurisdiction of the court was ousted in such wise that even questions of bad faith could not be raised. Viscount Simonds regretted that it should be so, but giving effect to the language of paragraph 16, held that even an allegation of bad faith was within the bar of Paragraph 16. Lord Morton of Henryton, Lord Reid and Lord Somervill of Harrow were of opinion that Paragraph 15 gave no such opportunity. Lord Radcliffe dissented. The cited case can have no relevance here because the statute provided for ouster of courts' jurisdiction in very different circumstances. Although this Court has already stated that allegations of bad faith can be considered, it may be added that where statutory powers are conferred to take drastic action against the life and liberty of a citizen, those who exercise it may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 and the Rules. For this purpose he bases his argument on three circumstances (i) that the District Magistrate acted outside his jurisdiction as created by Notification No. 11155-C dated 11-8-1964 published in the Bihar Gazette Extra dated August 11, 1964; (ii) that the District Magistrate's order is defective because he purports to derive power from notification No. 180 of March 20, 1964 which had been rescinded; and (iii) the District Magistrate purports to act to maintain law and order when he can only act to maintain public order under the Defence of India Act and the Rules thereunder. We shall now consider these grounds of objection. Before we do so we may read the provisions of the Defence of India Act and the Rules to which reference may be necessary. The first part of the Defence of India Act we wish to read is the long title and the preamble. They are: An Act to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. WHEREAS the President has declared by Proclamation under clause (1) of article 352 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered with as little as possible. Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence. By virtue of the powers conferred by s. 3 of the Defence of India Ordinance, 1962 (now the Act), the Defence of India Rules 1962 were framed. Part IV of these Rules is headed Restriction of Movements and Activities of Persons and it consists of Rules 25-30, 30-A, 30-B and 31-34. These rules provide for various 7 36 subjects such as Entering enemy territory (Rule 25), Entering India (Rule 26), Information to be supplied by persons entering India (Rule 27) or Leaving India (Rule 28), Regulation of Movement of Persons within India (Rule 29), Powers of photographing etc. of suspected person (Rule 31), Control and winding up of certain organisations (Rule 32), provisions for Persons captured as prisoners (Rule 33) and Change of name by citizens of India (Rule 34). We are really not concerned with these rules but the headings are mentioned to consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that he apprehended danger not only in his district but in the whole of Bihar State and even outside and hence he has not acted within his jurisdiction. His argument attempts to make out, what we may call, an exercise of extraterrestrial jurisdiction on the part of the District Magistrate. He contends also that the notifications are bad because although the Defence of India Act contemplates the imposition of conditions, none were imposed and no circumstances for the exercise of power were specified. In our judgment, none of these arguments can be accepted. Section 40(2) of the Act does not require the imposition of any conditions but only permits it. This is apparent from the words if any in the sub-section. The only condition that the State Government thought necessary to impose is that the District Magistrates must act within their respective jurisdictions. It cannot be said that this condition was not complied with. Dr. Lohia was in the Patna District at the time. There was nothing wrong if the District Magistrate took a broad view of his activities so as to weigh the possible harm if he was not detained. Such a viewing of the activities of a person before passing the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside and action of persons within the country. These generic terms were used because the Act seeks to provide for a congress of action of which preventive detention is just a small part. In conferring power to make rules, s. 3 of the Defence of India Act enlarges upon the terms of the preamble by specification of details. It speaks of defence of India and civil defence and public safety without change but it expands the idea of public interest into maintenance of public order, the efficient conduct of military operations and maintaining of supplies and services essential to the life of the community . Then it mentions by way of illustration in cl. (15) of the same section the power of apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable (a) of being of hostile origin; or (b) of having acted, acting or being about to act or being likely to act in a manner prejudicial to- (i) the defence of India and civil defence; (ii) the security of the State; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defence of India Act. The enquiry then is not with a view to investigate the sufficiency of the materials but into the officer's notions of his power, for it cannot be conceived for a moment that even if the court did not concern itself about the sufficiency or otherwise of the materials on which action is taken, it would, on proof from the order itself that the officer did not realise the extent of his own powers, not question the action. The order of detention is the authority for detention. That is all which the detenu or the court can see. It discloses how the District Magistrate viewed the activity of the detenu and what the District Magistrate intended to prevent happening. If the order passed by him shows that he thought that his powers were more extensive than they actually were, the order might fail to be a good order. The District Magistrate here acted to maintain law and order and not public order. There are only two possibilities : (i) that there was a slip in preparing the order, or (ii) that maintenance of law and order was in the mind of the District Magistrate and he thought it meant the same thing as maintenance of public order. As to the first it may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the citizen but it is also strict against the authority. There can be no toleration of a pretence of using the Defence of India Act. The President's Order itself creates protection against things such as arbitrariness, misunderstood powers, mistake of identity by making his order apply only to cases where the detention is under the Act or the rules thereunder. No doubt, what matters is the substance but the form discloses the approach of the detaining authority to the serious question and the error in the form raises the enquiry about the substance. It is not every error in the order which will start such an enquiry. We have paid no attention to the error in the reference to the notification because that may well be a slip, and power and jurisdiction is referrable to the notification under which they would have validity. The other is not such a veneal fault. It opens the door to enquiry what did the District Magistrate conceive to be his powers ? In proceeding to discuss this question we may consider a decision of the Court of Appeal in England in Carltona Ltd. v. Commissioners of Works and Others([1943] 2 All. E.R. 560.). Curiously enough it was brought to our notice by Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regarded it, as I interpret his evidence, as falling under all the heads, and that may very well be having regard to the facts that these heads overlap in the way that I have mentioned. It seems to me, therefore, that there is no substance in that point, and his evidence makes it quite clear that he did bring his mind to bear on the question whether it appeared to him to be necessary or expedient to requisition this property for the purposes named, or some of them. The case is distinguishable on more than one ground. To begin with, it dealt with an entirely different situation and different provision of law. No order in writing specifying satisfaction on any or all of the grounds was required. Detention under Regu- lation 18-B required an order just as detention under the Defence of India Act. The distinction between action under Regulation 51 and that under Regulation 18-B was noticed by the Court of Appeal in Point of Ayr Collieries Ltd. v. Lloyd-George([1943] 2 All. E.R. 546 at 548.). It is manifest that when property was requisitioned it would have been a futile exercise to determine whether the act promoted the efficient prosecution of the war, or the maintaining of supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were- differences in kind. Fazl Ali J. took a different view which he had expressed more, fully in Brijbhushan and Another v. the State of Delhi ([1950] S.C.R. 605.) but he also observed that public safety had, as a result of a long course of legislative practice, acquired a well rccognised meaning and was taken to denote safety or security of the State and that the expression public order was wide enough to cover small disturbances of the peace which do not jeopardise the security of the State and paraphrased the words public order' as public tranquillity. Both the aspects of the matter were again before this Court in The Superintendent Central Prison, Fatehgarh v. Ram Manohar Lohia([1960] 2 S.C.R. 821.) when dealing with the wording of clause (2) of Art. 19 as amended by the Constitution (First Amendment) Act, 1951, it fell to be decided what public order meant. Subba Rao J. speaking for the Court referred to all earlier rulings and quoting from them came to the conclusion that public order was equated with public peace and safety and said : ........ Presumably in an attempt to get over the effect of these two decisions, the expression public order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as public order in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting security of State , law and order also comprehends disorders of less gravity than those affecting public order . One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order problem but he could deal with such a problem through the ordinary law of the land and not by means of the Defence of India Act and the Rules. His powers were limited to taking action to maintain public order. He could not run the law and order problems in his District by taking recourse to the provisions for detention under the Defence of India Act. If he thought in terms of public ordee' he should have said so in the order or explained how the error arose. He does neither. If the needs of public order demand action a proper order should be passed. The detention must, therefore, be declared to be outside the Defence of India Act, 1962 and the Rules made thereunder. Dr. Lohia is entitled to be released from custody and we order accordingly. Raghubar Dayal, J. In this writ petition Dr. Lohia challenges the validity of the order made by the District Magistrate, Patna, dated August 9, 1965, under cl. (b) of sub-r. (1) of r. 30 of the Defence of India Rules, 1962, hereinafter called the Rules. This order is as follows : Whereas 1, J. N. Sahu, District Magistrate, Patna, am satisfied with respect to the person known as Dr. Ram Manohar Lohia, Circuit House, Patna t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordered detention on being satisfied as required by r. 30. What is crucial for the validity of the detention order is such satisfaction and not the form in which the detention order is framed. A detenu can question the validity of the detention order-valid on its face-on various grounds including that of mala fides. The onus will be on him to prove mala fides. He can question the validity of the detention order on the same ground when, on its face, it appears to be invalid. In such a case the onus will be on the detaining authority to establish that it was made bona fide. An order is made mala fide when it is not made for the purpose laid down in the Act or the rules and is made for an extraneous purpose. The contention of the petitioner to the effect that the detention order cannot be made on the satisfaction of the detaining authority that it is necessary to prevent him from acting in a manner prejudicial to the maintenance of law and order, in effect, amounts to the contention that it is made mala fide. The detaining authority is free to establish that any defect in the detention order is of form only and not of substance, it being satisfied of the necessity to detain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting prejudicially to the public safety and maintenance of public order, does not mean that he was not so satisfied when the earlier sentence makes reference to the report of the Senior Superintendent of Police for detaining Dr. Lohia on the ground of his being at large to be prejudicial to public safety and maintenance of public order. The District Magistrate referred, in para 3 of his affidavit, to his satisfaction that the forces of disorder which were sought to be let loose, if not properly controlled, would envelop the whole State of Bihar and possibly might spread in other parts of the country which would necessarily affect the problem of external defence as well in more ways than one. The possibilities of such forces of disorder spreading to other parts of the country satisfied him with the necessity of taking immediate action to neutralize those forces. It appears from his statements in paras 6 and 7 of the same affidavit that actual disturbances took place at Patna that day and that he had to operate from the Control Room. In para 9 he states that the action taken against Dr. Lohia was purely for the purpose of maintenance of public peace in the circumstances stated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d merely with reference to enforcement of law by the agency of the State prose cuting offenders against any of the numerous laws enacted for the purposes of a well- regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquillity. Reference may be made to the case reported as Sodhi Shamsher Singh v. State of Pepsu (A.I.R.1954 S.C. 276.). In that case certain persons were detained under an order under S. 3 (1) of the Preventive Detention Act, 1950, on grounds which, in substance, were that one of them had published certain pamphlets whose circulation, in the opinion of the Government, tended to encourage the Sikhs to resort to acts of lawlessness and plunge the Hindus into a feeling of utter frustration and discouragement and consequently to make them take the law into their hands for the redress of their grievances. Section 3(1) of the Preventive Detention Act, 1950, reads : The Central Government or the State Government may- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- (i) the defence of India, the relations of India with f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia from acting prejudicially to public safety. The entire circumstances in which the order has been made and which I have referred to earlier, point to that. The question before us is not really at par with the question' that arose in Romesh Thappar v. State of Madras([1950] S.C.R. 594). In that case the provisions impugned were those of a statute whose language authorised the passing of orders which could be constitutional in certain circumstances and unconstitutional in others. In such a context, it was said that where a law purports to authorize the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable; so long as the possibility of its being applied for purpoes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. It was so held as, otherwise, the orders passed for purposes not sanctioned by the Constitution would have been in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. As stated earlier, there does not appear to be any reason why the District Magistrate would not have passed the order of detention against Dr. Lohia on his satisfaction that it was necessary to prevent him from acting prejudicially to public safety. On such satisfaction, it was incumbent on him to pass the order and he must have passed it. I am therefore of opinion that the District Magistrate made the impugned detention order on his being satisfied that it was necessary to do so with a view to prevent Dr. Lohia from acting in a manner prejudicial to public safety and maintenance of public order and that the impugned order is valid. Consequently, Dr. Lohia cannot move this Court for the enforcement of His rights under arts. 21 and 22 of the Constitution in view of the President's Order under art. 359(1) of the Constitution. I would dismiss this petition. Mudholkar, J I agree that the petition of Dr. Ram Manohar Lohia under Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case the District Magistrate, Patna purported to make an order under r. 30 (1) of the Defence of India Rules. The State has placed on record copies of two orders: one is said to have been recorded by the District Magistrate on his file and another which was served on Dr. Lohia. We are not concerned with the former because the operative order must be the one served on the detenu. The District Magistrate may well keep the former in the drawer of his table or alter it as often as he likes. It cannot, therefore, be regarded as anything more than a draft order. The order which finally emerged from him and was served on the detenu would thus be the only one which matters. The grounds for detention given in the latter order are that Dr. Lohia's being at large is prejudicial to public safety and maintenance of law and order. Under r. 30(1) an order of detention of a person can be made with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of milit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the maintenance of law and order? Again, would the District Magistrate have made the order solely on the ground that he felt apprehension re- garding the maintenance of public safety because of the activities in which he thought Dr. Lohia might indulge? It could well be that upon the material before him the District Magistrate would have refrained from making an order under r. 30 solely upon the first ground. Or on the other hand he would have made the order solely upon that ground. His order, however, which is the only material on the basis of which we can properly consider the matter gives no indication that the District Magistrate would have been prepared to make it only upon the ground relating to public safety. In the circumstances I agree with my brethren Sarkar and Hidayatullah that the order of detention cannot be sustained. I have not referred to any decisions because they have already been dealt with fully in the judgments of my learned brethren. In the result, therefore, I allow the petition and direct that Dr. Lohia be get at liberty. ORDER In view of the majority opinion, we allow the Petition and order that the petitioner be set at liberty. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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