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TMI Blog1957 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 24, 1956, the grounds of detention were communicated to the appellant under s. 7 of the Preventive Detention Act, No. IV of 1950, hereinafter referred to as the Act. The case of the appellant was then sent to an Advisory Board constituted under s. 8 of the Act, and the Advisory Board having reported that there was, in its opinion, sufficient cause for detention of the appellant, the Central Government confirmed the order of detention on August 20, 1956, and stated further that the appellant shall continue in detention for a period of twelve months from the date of his detention . This order was passed under sub-s. (1) of s. 11 of the Act. 3. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the issue of a writ in the nature of a writ of habeas corpus. The petition to this Court was dismissed and as nothing turns upon that petition, no further reference need be made to it. In the petition to the Punjab High Court under Art. 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub-s. (1) of s. 11 of the Act was unconstitutional inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the expiration of the said period of three months that there is in its opinion sufficient cause of such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any lay made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making 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. (7) Parliament may by law prescribe - (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the said sub-clause. 8. On behalf of the respondent, the argument is that the expression 'such detention' occurring in sub-clause (a) of clause (4) of Art. 22 refers back to 'preventive detention' occurring in the first line of clause (4), and under the said sub-clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person concerned for more than three months is no violation of the constitutional mandate contained in the said sub-clause. 9. We have to determine the correctness or otherwise of these rival contentions. No decision directly deciding the point at issue has been brought to our notice. There are, however, certain observations, made in A.K. Gopalan v. The State of Madras [1950] S.C.R. 88, with regard to the meaning and effect of sub-clause (a) of clause (4) of Art. 22, to which a reference must now be made. At page 117 of the report, Kania, C.J. said : Article 22(4) open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order which has been confirmed under s. 11, is twelve months from the date of detention, the Act now contains no provisions as to the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board; therefore, the argument of the appellant is that the last point made by the observations of Kania C.J. is no longer valid in view of the amendments made in the Act of 1950. We have proceeded in this case on the footing that sub-clause (a) of clause (4) of Art. 22 applies to the Act as it stands after the amendments, and even on that footing there is, in our opinion, no inconsistency between that sub-clause and the impugned provisions of the Act, as we shall presently explain. 11. In his dissentient judgment in Gopalan's case (supra), Fazl Ali J., made the following observations with regard to clause (4) of Art. 22. Said his Lordship at pages 170 and 171 of the report : In connection with the first point, the question arises as to the exact meaning of the words 'such detention' occurring in the end of clause (4)(a). Two alternative interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the words 'sufficient cause for such detention' in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub-clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned counsel submitted, the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words 'such detention' in sub-clause (a) refer back to the preventive detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled by the provisions of cls. (4), (5), (6) and (7) of Art. 22. The maximum period of detention is not prescribed by the Constitution, but Parliament may by law prescribe such a period. The Constitution contemplates that any law which authorises detention for more than three months should be subject to certain safeguards, as provided in clause (4) of Art. 22 which directs that the case of a detained person under any law authorising detention for more than three months must be the subject of a report by an Advisory Board. The Advisory Board is to report whether there is sufficient cause for such detention. If the Advisory Board reports that the detention is justified, then only the detaining authority determines the period of detention. On the other hand, if the Advisory Board reports that the detention is not justified, the detained person must be released. Clause (4) of Art. 22 does not state that the Advisory Board has to determine whether the person detained should be detained for more than three months. What it has to determine is whether the detention is at all justified. The setting up of an Advisory Board to determine whether such detention is justified is considered as a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need not be made. Therefore, both the furnishing of grounds and the report of the Board are, in a sense, limited safeguards. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to consider whether a person should be detained and the period for which he should be detained. It could not have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to another authority - the Board in this case - to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because it is the authority upon which responsibility for detention has been placed. The reference to the Board is only a safeguard against Executive vagaries and high-handed action and is a machinery devised by the Constitution to review the decision of the Executive on the basis of a representation made by the detenu, the grounds of detention, and where the order is by an officer, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. 18. In Dattatreya Moreshwar Pangarkar v. State of Bombay [1952] S.C.R. 612, Mukherjea J. (as he then was) said : It is now settled by a pronouncement of this Court that not only it is not necessary for the detaining authority to mention the period of detention when passing the original order under s. 3(1) of the Preventive Detention Act, but that the order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for consideration before the Advisory Board. The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause of detention of the person concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under s. 11(1) of the Act 'confirm the detention order and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading reports and information about conditions in the State of Jammu and Kashmir which are false and calculated to prejudice the relations of India with foreign powers and also to prejudice the security of the State. . . . 3. That you are in constant touch with certain persons in Pakistan and Pakistani occupied part of Jammu and Kashmir who are hostile to India and you are assisting there persons in their activities which are prejudicial to the security of India. 4. That you are receiving financial assistance from persons in Pakistan and Pakistani occupied part of Jammu and Kashmir for supporting and furthering your aforesaid prejudicial activities. 5. That you are in regular connection with persons in India who are engaged in promoting false propaganda against India in relation to Kashmir and have been attending their secret meetings for planning action and propaganda in relation to Kashmir prejudicial to the security of India. 6. The Central Government is satisfied that you are likely to act in a manner prejudicial to the security of India and in a manner prejudicial to the relations of India with foreign powers and with a view to prevent you from so acting has pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have a rational connection with the objects mentioned in s. 3 are supplied, the first condition is complied with. But the right to make a representation implies that the detenu should have such information as will enable him to make a representation and if the grounds supplied are not sufficient to enable the detenu to make a representation, he can rely on the second right. The second right, however, is again subject to the right of privilege given by clause (6) and as has been pointed out in Lawrence D'Souza's case (supra), the obligation to furnish grounds and the duty to consider whether the disclosure of any facts involved therein is against public interest, are both vested in the detaining authority and not in any other. 25. As in Lawrence D'Souza's case (supra), it is unnecessary in the present case to consider the theoretical contention as to whether or not Art. 22(6) of the Constitution overrides the constitutional right to be furnished grounds under Art. 22(5) to the extent of denying all the particulars and leaving the grounds absolutely vague. We are of the opinion that in the present case the grounds furnished to the appellant, though not as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual statement, however, the appellant said : It would not be an exaggeration to state that were a plebiscite to be held there today, over 90% of Kashmiris would vote against India etc. The only difference between the two is that instead of the word 'not', the word 'no' has been used in the extract; otherwise, there is no difference between the two statements. Such verbal differences are not inaccuracies at all, and we are unable to accept the contention of the appellant that the detaining authority did not apply its mind to the grounds communicated to him. 28. Lastly, the appellant has raised the question of mala fides. This question has been considered at great length by the learned Judge of the Punjab High Court who dealt with the petition of appellant. The appellant referred in his affidavit to some of his activities from 1954 onwards and to certain events which happened between 1954 and 1956. He also referred to certain statements alleged to have been made by the Prime Minister and the Home Minister, and he averred that both of them were annoyed with him for his activities and therefore the order of detention was not bona fide. We are unable to accept t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Detention Act, 1950, under which they were made is ultra vires the Constitution. I have come to the conclusion that this objection to the Act is sound and that is why I do not find it necessary to discuss the other contentions raised by the appellant. 33. The contention of the petitioner is based on Art. 22(4)(a) of the Constitution. The relevant portion of the article is set out below : (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). .............................................................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase does make provisions for the constitution of the Advisory Board and for submitting all cases of detention irrespective of their periods of detention to it for its opinion as to whether or not there is sufficient cause for detention, but it does not provide that where it is intended to detain a person for a period longer than three months then the Advisory Board must report that there was sufficient cause for detention for a period longer than three months. The provision for the opinion of the Advisory Board is contained in s. 10(2) of the Act which is in the following terms : S. 10(2). - The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. 36. If therefore the appellant is right in his contention that the words such detention mean detention for a longer period than three months then the provisions of the Act authorising detention for more than three months must be held to be ultra vires. The question is, what do these words mean ? 37. As a matter of pure construction of the language used in sub-clause (a) it seems to me that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for preventive detention is mentioned. The words such detention cannot possibly refer to that law. That law may, no doubt, provide for detention for a shorter period but such shorter detention is not mentioned in the clause nor really in its contemplation at all. So no question of the words such detention referring to the shorter detention arises. 39. But suppose the learned Solicitor-General was right in his contention that the words, in the context they are used, are capable of referring both to preventive detention simpliciter and to preventive detention for a period longer than three months, are there reasons for preferring the first of the two alternative constructions ? I am unable to find any. The learned Solicitor-General said that if the words were referable only to a detention for a period longer than three months then people detained for a shorter period would be deprived of the safeguard of the opinion of the Advisory Board and lose the chance of being set free if it expressed the view that there was no sufficient cause for detention. That no doubt would be so. But I find nothing in the language of clause (4) to show that such a safeguard was intended. If the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no law can provide for preventive detention for a longer period than three months without reference to an advisory board. 43. Mukherjea, J., (p. 281) : Preventive detention can be provided for by law for reasons connected with six different matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22(4)(a) which lays down that detention for more than three months could not be permitted except with the sanction of the advisory board. 44. Das, J., (p. 326) : In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention. Apart from imposing a limitation on the legislative power, clause (4) also prescribes a procedure of detention for a period longer than three months by providing for an advisory board. 45. The learned Solicitor-General then contended that Art. 22 dealt both with preventive detention and other kinds of detention. Thus clauses (1) (2) dealt with other kinds of detention while clause (4) and the remaining clauses of the article dealt with preventive detention. Clause (3) said that nothing in clauses (1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution would obviously make a distinction between preventive detention for a shorter period and preventive detention for a longer period. To say that there is no distinction between these kinds of preventive detention is to assume that the makers of the Constitution never intended to make the distinction. For such an assumption I find no justification. Indeed, what I have read from the judgment of this Court in Gopalan's case, would show that the distinction between preventive detention simpliciter and preventive detention for a period longer than three months was in the mind of the makers of the Constitution, for it is there said that no reference to the Advisory Board is contemplated by the Constitution excepting in a case of detention for a period longer than three months. 47. The present argument of the learned Solicitor-General is on the basis that one of the possible constructions of the words such detention is detention for a period longer than three months. That being so, and the word such meaning in the ordinary English language, of the kind already described, even if two kinds of detention, namely, preventive detention simpliciter and detention for other reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessarily is as to the sufficiency of the cause of detention for a period longer than three months. Besides, if, as the present argument assumes, it is obligatory in a law authorising preventive detention for a period longer than three months to provide for a report of the Advisory Board stating expressly its opinion as to the sufficiency of the cause for the detention for the period mentioned. I am unable to appreciate that such an obligation is satisfied by not making the required provision but by showing that by necessary implication the required opinion is deemed to have been given, even though in fact it may not have been given. The question is not what the report is to be deemed to have stated nor even what it has in fact stated, but what the statute should provide. If the statute has not made the obligatory provision it must be held to be bad. It would be a strange argument to say that it must be good because though it did not contain the required provision it must in view of the Constitution be deemed to contain it. 49. It was then said that as it is not for the Advisory Board to decide the period of detention to be ordered there can be no point in providing that its opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusive authority on the point, but some have been referred to. There I now proceed to consider. 51. The first case referred to is Gopalan's case [1950] S.C.R. 88. That was also a case concerned with the issue of a writ of habeas corpus, and it turned on the very Act that is before the Court now, as it stood in 1950. At the date the order for detention in that case was made the Act provided that in certain class of cases a person might be detained for a period longer than three months without obtaining the opinion of the Advisory Board in accordance with the provisions of Art. 22(4)(a). Such a provision is sanctioned by clause (7)(a) of that article. The order for detention made in that case was of a kind where reference to the Advisory Board was not obligatory. That being so, it was not necessary for the court in that case to decide the precise meaning of the words such detention . None the less, however, three of the learned judges indicated their views on the question and the other three do not seem to have dealt with it. Kania, C.J., expressed the opinion that the words such detention meant detention beyond the period of three months. Referring to the proviso to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was justified. On the other hand, the determination of the question whether prolonged detention (detention for more than three months) is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision. The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpretation which is favorable to the subject and which is also in accord with the object in view. 53. Patanjali Sastri, J., preferred the other view but he realised that the view taken by Fazl Ali, J., was also a possible view. He expressed himself in these words on the subject (at page 210) : I am inclined to think that the words such detention in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is Makhan Singh Tarsikka v. The State of Punjab [1952] S.C.R. 368. This was also a case for the issue of a writ of habeas corpus for the release of a person detained under the same Act as it stood in July 1951. In this case the first order for detention, that is to say the order made before the reference to the Advisory Board itself fixed the period of detention. It was held that was illegal because the Act made it plain that it is only after the Advisory Board to which the case has been referred reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. On this ground the petition for the issue of a writ was allowed. This case was obviously not concerned with Art. 22(4)(a) and does not in any manner decide the question before me. I am, therefore, unable to find any assistance from it. 56. Lastly, reference was made to Dattatreya Moreshwar Pangarkar v. The State of Bombay [1952] S.C.R. 612. That again was concerned with an application for the issue of a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended to say that all that the Advisory Board was required to do was to express its opinion on the question of justification of the detention simpliciter. This may be so, but Mr. Justice Mukherjea was construing the Preventive Detention Act which admittedly made that provision. He was not saying that Art. 22(4)(a) also said the same thing. Indeed what I have read earlier from his judgment in Gopalan's case [1950] S.C.R. 88, would show that his view about Art. 22(4)(a) was otherwise. Again the learned Judge was not concerned with the question whether the relevant provision of the Preventive Detention Act was ultra vires the Constitution. Furthermore, for the reasons earlier stated, the fact that the Government decides the term of detention does not indicate that it is not intended that when detention for a period longer than three months is contemplated, it is not necessary to obtain the opinion of Advisory Board as to whether there was sufficient cause for detention for the period. Reference was also made to the following portion of the judgment of Mahajan, J. [1952] S.C.R. 612, occurring at p. 637 of the report : Under the Constitution, the detention of a person under a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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