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TMI Blog1971 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... sult that the extension of the detention for a period longer than three months was unconstitutional. Sections 10 to 13 of the Act were described as violative of Article 22(4) and (7) of the Constitution; (2) that the restrictions both in respect of substantive law and in respect of procedure imposed by the Act on detenus' right guaranteed by Article 19(1)(d) were unreasonable and, therefore, the Act was unconstitutional; and (3) that the Act was violative of Article 14 of the Constitution inasmuch as it gave arbitrary, unguided and uncanalised power to the State Executive without prescribing any guidelines for its exercise. 2. The High Court held that the Act was not a law made by Parliament in terms of Article 22(7) of the Constitution. This conclusion is not questioned by the learned Attorney General before us and indeed he has conceded that the Act is not a law made by Parliament as contemplated by Article 22(7). The High Court then considered the question of the effect of the Act, if it is to be deemed to be an Act passed by the West Bengal Legislature. On this point it came to the conclusion that the provisions contained in Sections 11 and 13 of the Act relating to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (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). (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a law by Parliament no order of detention can authorise detention of any person for a period longer than three months and at the expiry of three months all persons detained under the Act must be released. 7. We are unable to accept this construction of Clause (7) of Article 22. It is noteworthy that Shri Chatterji, learned Counsel for the respondents, expressly conceded before us that Article 22(7) is only an enabling or a permissive provision and it does not impose a mandatory obligation on the Parliament to make a law prescribing the circumstances under which a person may be detained for more than three months as stated therein. But according to him Sub-clause (b) and (c) of Clause (7) do contain a mandate to the Parliament which is obligatory. In our view, Clause (7) of this Article on its plain reading merely authorises or enables the Parliament to make a law prescribing, (i) the circumstances under which a person may be detained for a period longer than three months, (ii) the maximum period for which a person may in any class or classes of cases be detained under any law providing for preventive detention and (iii) the procedure to be followed by the Advisory Board in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into conflict with a law made by Parliament with respect to the same matter. There is no provision of the Constitution to which our attention has been drawn nor has any principle of law or precedent been brought to our notice, which would justify a limitation on the power of the State Legislature, as suggested by the respondent, to make a valid law providing for detention under Article 22(4) for a period beyond three months on the ground of absence of a law made by Parliament permitting detention for such period. Had the Constitution intended such a result it would certainly have made an express provision to that effect. Since Article 22 covers the subject of preventive detention both under the law made by Parliament and that made by State Legislatures, if State Legislatures were intended by the Constitution to function under a limitation in respect of the period of detention one would have expected to find such a limitation expressly stated in this Article. But as we read Clause (7) of Article 22 it merely invests the Parliament with an overriding power enabling it, if the circumstances so require, to make a law, providing for preventive detention prescribing the circumstances u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act are not in the interest of the general public with the result that the Act must be struck down as violative of Article 19(1)(d). On behalf of the appellants this argument was countered on the ground that Cooper's case (supra) was strictly confined only to the right of property and that the right to personal freedom was not directly involved. In the alternative, according to the learned Attorney General, the restrictions imposed on a person who is detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as the Impugned Act purports to do, cannot be considered not to be in the interest of the general public. 10. In our opinion, assuming that Article 19(1)(d) of the Constitution is attracted to the case of preventive detention, restrictions imposed by the Act on the fundamental rights of a citizen, who has been detained under the Act, to move freely throughout the territory of India, with a view to preventing him from acting in any manner prejudicial to the security of the State of West Bengal or maintenance of public order, are clearly in the interest of the general public. The Act, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e historical events which led to the President's rule. Those events, in our view, fully demonstrate the necessity in the interest of the general public to bring on the statute book the provisions of the Act. The general argument challenging the vires of the Act is thus wholly without substance. 11. Shri A. P. Chatterjee next directed his attack to the validity of the various clauses of Sub-section (2) of Section 3 of the Act. According to the submission these clauses arbitrarily extend the scope of the expression "acting in any manner prejudicial to the security of a State or the maintenance of public order." Let us turn to Section 3 to see how far the respondents' attack is substantiated. This section reads :- 3(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State' or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) For the purposes of Sub-section (1), the expression 'acting in any manner prejudicial to the security of the State or the maintenance of public order' means- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r specified in Sub-section (3), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after 'the making thereof unless, in the mean time, it has been approved by the State Government. (5) When any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government have a bearing on the necessity for the order." 12. The challenge to Clause (a), (b), (d) and (e) is prima facie unfounded for there can be no two opinions about the acts covered by these clauses being reasonably likely to be prejudicial to the maintenance of public order. That, disturbance of public order in a State may in turn prejudicially affect its security, is also undeniable. Fairly close and rational nexus between these clauses and the maintenance of public order and security of the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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