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TMI Blog1984 (3) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... preventive detention laws enacted by the Parliament from time to time. Persons who are security risks to the State are to be detained under the provisions of some of such enactments. Under some enactments persons who are found to be antisocial and are likely to sabotage the economic and social order in this country are to be held under preventive detention. It is the great risk involved in allowing such persons to move about freely and with the same amount of liberty enjoyed by the ordinary citizens of the land that justifies preventive detention in their cases. It is the apprehension of very grave consequences if they are allowed to be free and on their own that justifies invocation of provisions relating to preventive detention against them. Otherwise detention can only be punitive. A person subjected to preventive detention gets the benefit of many safeguards and more than anything else that of a regular trial according to recognized canons of criminal jurisprudence and also the benefit of adjudication by a traditional court with the in-built safeguard of hierarchy of appeals and revisions. Though every citizen is entitled to enjoy personal liberty and freedom encroachment is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... causing or calculated to cause alarm, danger or harm to person or property or in cases where there are reasonable grounds for believing that such person is engaged or is. about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence. There is a further requirement in order to enable such officer to invoke Section 56 and that is. that in the opinion of such officer witnesses are I. not willing to come forward to give ! evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. We are referring to only that part of Section 56 which is relevant for the purpose of this case. The satisfaction to be reached by the officer concerned is that 'such person concerned is informed in writing of the general nature of the material allegations against him. This is to give him a reasonable opportunity of tendering an explanation regarding the material allegations. Such person is free to examine any witness produced by him except in cases where the officer feels that such motion is made for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quence and that these are illusory. There is no minimum protection to the petitioners by way of an opportunity to explain what may be against them. The protection by way of a procedure to secure a reasonable opportunity to defend may vary from case to case, from the safeguard of a trial in a regular court to that of merely giving an opportunity to explain the case against a person. This is a wide range and the appropriateness of adopting the procedure in any given case must depend upon the class to which the case belongs. Even so it is said that no civilized approach will countenance a situation where a person is deprived of his liberty without the minimum procedure of telling him what is against him and giving him an opportunity to answer that, even though he may not be given an opportunity to substantiate his answer by evidence and there are not further safeguards such as appeal and revision. The complaint of the petitioner is that the provisions with regard to furnishing the general nature of the material allegations serve absolutely no purpose as such communication is not capable of any effective answer and in that context the examination of witnesses by the petitioner also mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regard the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part thereof as the case may be, from which he was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions or any officer above the rank of an Inspector authorized by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him. (2) The authority or officer proceeding under Sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under Section 55, 56 or 57 require such person to appear before him and to pass a security bond with or without sureties for such attendance dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r public safety or security of the State in the concept of action under Section 56. This is quite important. The procedure under Section 59 applies both to action taken under Section 56 and also action taken under Section 57, and the ultimate consequence in both the cases are also similar. 6. Gurbachan Singh's case 1952CriLJ1147 was perhaps one of the earliest cases where a challenge similar to that made in this case was urged before the Supreme Court. There the sections challenged were Section 27(1)(a) of the City of Bombay Police Act corresponding to Section 56 and Section 27(4) of that Act corresponding to Section 59 of the Bombay Police Act, 1951. These sections were challenged as infringing the freedom guaranteed to the citizen under Article 19(1)(d) and (e) as well as Article 14 of the Constitution of India. The Supreme Court expressed the view that it was difficult to say that the provision in Section 27(1)(a) was unreasonable. It is to be noticed that the only point urged in that case by way of challenge to that provision was that there was no right of cross-examination of witnesses and the Court was of the view that this by itself will not vitiate the provision. Answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of Police Bombay 1956CriLJ1104 , the learned Judge expressed the view that the provision prima facie infringes the fundamental right of a citizen under Article 19(1)(d) and (e) of the Constitution. The learned Judge, in the course of the judgment, observed: The fact that our Constitution which declares fundamental rights also permits a law of preventive detention under very limited safeguards and that such laws have taken the pattern of the exercise of power by the Government or by its officers for Specified purposes on the basis of their subjective satisfaction, has made us prone to reconcile ourselves to (other kinds of restrictive laws affecting personal liberty though based on the subjective satisfaction of executive officers, if only they provide for certain minimum safeguards such as supply of grounds, right of representation, and the scope for review by a superior authority or by an advisory body. In the same dissenting judgment Justice Jagannadhadas at the end of para 14 of the judgment observed: While, of course, abuse of power is not to be assumed to test its reasonableness neither is a power given in wide terms and prima facie unreasonable, to be considered reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained. We may refer to one more decision in this context, that is in Pandharinath v. State of Maharashtra 1973CriLJ612 . The provision in Section 56 was examined in that case and the Court observed in para 9: A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show-cause notice were to furnish to the proposed extreme concrete data like specific dates of incidents or the names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Now we come to the further contention by the counsel in this case that a law, not found to infringe Article 19 or Article 14 of the Constitution, may still be bad if it operates to deprive a person of his liberty and the procedure for such deprivation is not under a law which is fair, just and reasonable. Evidently the question was not considered in the earlier cases because the content of Article 21 was understood differently until Maneka Gandhi's case [1978]2SCR621 revolutionized that aspect of the law. The contention of the petitioner in this regard may be summarised thus : Sections 56 and 59 of the Act must pass also the test of fairness and reasonableness, such fairness is to be determined from the perspective of the person whose liberty is affected, tested on this approach any law which gives no opportunity whatsoever to a person before depriving him of his liberty would certainly be unfair, the provision to inform the person concerned about the general nature of material allegations is as good as giving him no notice of the reasons for the action against him and an effective opportunity even to make a representation is denied to him, let alone the examination of his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its exercise. This quality of fairness in the process is emphasized by the strong word 'established' which means 'settled firmly' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes 'established' procedure. And 'Law' leaves little doubt that it is normae regarded as just since law is the means and justice is the end. The learned Judge followed it up by the observations: 119. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend, their rights; observance of fundamental right is not regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that people's militant awareness rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of 'question hour' and the slow and unsure delivery of Court writ 'Community Consciousness and the Indian Constitution' is a fascin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other indications, also, in the Constitution which show that the Constitution-makers were fully cognizant of the existence of death penalty for murder and certain other offences in the IPC. Entries 1 and 2 in List III, Concurrent List, of the Seventh Schedule, specifically refer to the IPC and the Cr.P.C. as in force at the Commencement of the Constitution, Article 72(1)(c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also "in all cases where the sentence is a sentence of death". Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terns, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial Court. Under the successive Cr.P.C. which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kewise, there must be sufficient reason to believe that the person proceeded against, is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied.' We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi [1978]2SCR621 . The learned Judges also cautioned: By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti-social elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nations health, wealth, peace and security in jeopardy. The only insistence is that the means must also be as good as the ends. 16. Our attention has been drawn by the learned Advocate General appearing for the State to a recent decision of the High Court of Bombay reported in Criminal Law Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel that Act was upheld only because that there were safeguards provided in the Act itself in regard to procedure. The learned Counsel asked the question whether the class of people who are to receive treatment under Section 56 are worse than those class of people who are treated under the National Security Act and if so whether they are not entitled at least to those safeguards? 17. May be that at one time it was expected that Section 56 of the Act would be used with considerable circumspection and that approach might have influenced in upholding the validity of the Act despite the fact that unlike in statutes relating to preventive detention there is no guarantee of minimum safeguards of procedure in the impugned sections, safeguards which will assure an effective opportunity to a person against whom, for reasons best known to the Police, action is initiated. Our attention has been drawn by the counsel for the petitioner in this case to instances where Section 56 of the Bombay police Act has been invoked even against practicing advocates. Particular reference has been made to Spl. Crl. Application No. 192/80 challenging action under Section 56 of the Bombay Police Act taken u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 56 and 59 of the Bombay Police Act would not be permissible in this Court in view of the matter having been considered by the Supreme Court on earlier occasions, as a result of which consideration the sections have been held to be valid. A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner in this case. Hence we find against the petitioner on the question of validity of the impugned sections. 19. Now we will go into the merits. The main contentions raised on the merits will have to be answered against the petitioner on the basis of the decisions adverted to. As we have already indicated the plea that the notice issued was vague and the general allegations did not give any notice of specific events or incidents is a matter which we do not propose to deal with in view of what we have already said. So is the contention that the order by the entering authority and the order in appeal are not speaking orders. The decisions which we have adverted to cover that point also and in the light of those decisions we have to hold that these are not infirmities in the proceedings. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproach remembering that the consequences of their order is the ' deprivation of the freedom of movement of the person who is subjected to that order, quite often unsettling him and keeping him away from his home. It is not likely that such externees could rehabilitate themselves in another district of the State particularly with the background of their externment and there is every likelihood of such persons getting involved deeper in the criminal life of the area to which they are extemed. The power conferred on the externing authority should not be exercised with a penal content or with a punitive direction and should be exercised with due regard for human rights. We felt that while dismissing the petition now before us and adopting a course which may perhaps result in the dismissal of other petitions too a word of caution would not be out of place. We hope that this will be taken in the right spirit. 21. The counsel for the petitioner makes an oral application under Article 134(1)(c) read with Article 134A of the Constitution for leave to appeal to the Supreme Court of India. We find that there is a substantial question of law of general importance calling for decision by ..... 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