No 79 of 1965
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
The petitioner appeared in person
A V Viswanatha Sastri and section P Varma for the respondents
Sarkar J Hidayatullah J on behalf of himself and Bachawat J and Mudholkar J delivered separate concurring Judgments
Raghubar Dayal J delivered a dissenting Opinion
Sarkar J Dr Ram Manohar Lohia a member of the Lok Sabha has moved the Court under article 32 of the Constitution for a writ of habeas corpus directing his release from detention under an order passed by the District Magistrate of Patna
The order was purported to have been made under r 301b of the Defence of India Rules 1962
Dr Lohia who argued his case in person based his claim to be released on a number of grounds
I do not propose to deal with all these grounds for I have come to the conclusion that he is entitled to be released on one of them and to the discussion of 714 that ground alone I will confine my judgment
With 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 No180COW 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 provides for an order of detention being made to prevent act prejudicial to the maintenance of public order but it is said that public order and law and order are not the same thing and therefore though an order of detention to prevent acts prejudicial to public order might be justifiable a similar order to prevent acts prejudicial to law and order would not be justified by the rule
It seems to we that this contention is well founded
Before proceeding to state my reasons for this view I have to dispose of an argument in bar advanced by the respondent State
That argument is that the petitioner has in view of a certain order of the President to which I will presently refer no right to move the Court under article 32 for his release
It is said that we cannot therefore hear Dr Lohia s application at all
To appreciate this contention certain facts have to be stated and I proceed to do so at once
Article 352 of the Constitution gives the President of India a power to declare by Proclamation that a grave emergency exists whereby the security of India is threatened inter alia by external aggression
On October 26 1962 the President issued a Proclamation under this article that such an emergency existed
This presumably was done in view of China s attack on the north eastern frontiers of India in September 1962
On the same day as the 715 Proclamation was made the President passed the Defence of India Ordinance and rules were then made thereunder on November 5 1962
The Ordinance was later on December 12 1962 replaced by the Defence of India Act 1962 which however continued in force the rules made under the Ordinance
On November 3 1962 the President made an order under article 3591 which he was entitled to do declaring that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation  is in force if such person has been deprived of any such rights under the Defence of India Ordinance 1962 or any rule or order made thereunder
 There is no doubt that the reference in this Order to the Defence of India Ordinance 1962 must after that Ordinance was replaced by the Act as earlier stated be understood as a reference to the Act see Mohan Chowdhury vs The Chief Commissioner Tripura1
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 articles 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 article 3591 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 articles 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 away his right to move a court
Thus if a person is detained under the  his right to move the Court for enforcement of his rights under articles 21 and 22 remains intact
That is not a case in which his right to do so can be said to have been taken away by the President s Order
This Court has in fact heard applications under article 32 challenging a detention under 1  7 16 that Act  see Rameshwar Shaw vs District Magistrate of Burdwan1
If any person says as Dr Lohia does that he has been deprived of his personal liberty by an order not made under the Act or the Rules there is nothing in the President s Order under article 3591 to deprive him of his right to move the Court under article 32
The Court must examine his contention and decide whether he has been detained under the Act or the Rules and can only throw out his petition when it finds that he was so detained but not before then
If it finds that he was not so detained it must proceed to hear his petition on its merits
The right under article 32 is one of the fundamental rights that the Constitution has guaranteed to all persons and it cannot be taken away except by the methods as provided in the Constitution one of which is by an order made under article 359
The contention that an order under that article has not taken away the constitutional right to personal liberty must be examined
Mr Verma said that Smith vs East Elloe Rural District Coun cil1 supported the contention of the respondent State
I do not think so
That case turned on an entirely different statute
That statute provided a method of challenging a certain order by which property was compulsorily purchased and stated that it could not be questioned in any other way at all
It was there held that an action to set aside the order even on the round of having been made mala fide did not lie as under the provision no action was maintainable for the purpose
That case is of no assistance in deciding the question in what circumstance a right to move the court has been taken away by the entirely different provisions that we have to consider
Here only a right to move a court in certain circumstances has been taken away and the question is has the court been moved on the present occasion in one of those circumstances  The President s Order does not bar an enquiry 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 vs The State of Punjab 3 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 1  2  3 1964 4 SCR 797
717 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 Defence of India Rules
I here pause to observe that if it was not so made there is no other justification for his detention none is indeed advanced
He would then be entitled to his release
I have already stated that the Proclamation of Emergency was made as the security of India was threatened by external aggression
That Proclamation of emergency was the justification for the Act
The Act in fact recited the Proclamation in its preamble
Section 3 of the Act gave the Central Government power to make rules providing for the detention of persons without trial for various reasons there mentioned
Rule 301 b under which the order of detention of Dr Lohia was made was framed under section 3 and is in these terms  The Central Government or the State Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the 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 military operations or the maintenance of supplier and services essential to the life of the community it is necessary to do so may make an order a  b directing that he be detained
 As I have said earlier the order was made by the District Magistrate Patna to whom the power of the Government of the State of Bihar in this regard had been duly delegated under section 402 of the Act
Under this rule a Government can make an order of detention against a person if it is satisfied that it is necessary to do so to prevent him from acting in a manner prejudicial among other things to public safety and the maintenance of public order
The detention order in this case is based on the ground that it was necessary to make it to prevent Dr Lohia from acting in any manner prejudicial to public safety and the maintenance of law and order
I will in discussing the contention of Dr Lohia proceed on the basis as if the order directing detention was only for preventing him from acting in a manner prejudicial to the 718 maintenance of law and order
I will consider what effect the inclusion in the order of detention of a reference to the necessity for maintaining public safety has later
The question is whether an order could be made legally under 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 gravity and of local significance only
To take an illustration if people indulging in the Hindu religious festivity of Holi become rowdy prevention of that disturbance may be called the maintenance of law and order
Such maintenance of law and order was obviously not in the contemplation of the Rules
What the Magistrate making the order exactly had in mind by the use of the words law and order we do not know
Indeed we are not entitled to know that for it is well settled that courts cannot enquire into the grounds on which the Government thought that it was satisfied that it was necessary to make an order of detention
Courts are only entitled to look at the face of the order
This was stressed on us by learned counsel for the respondent State and the authorities fully justify that view If therefore on its face an order of detention is in to of the rule a court is bound to stay its hands and uphold the order
I am leaving here out of consideration a contention that an order good on the face of it is bad for reasons dehors it for example because it had been made mala fide
Subject to this and other similar exceptions to which I have earlier referred and as to 719 which it is unnecessary to say anything in the present context and also because the matter has already been examined by this Court in a number of cases court cannot go behind the face of the order of detention to determine its validity
The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction
A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person
If that is so and that indeed is what the respondent State contends it seems to me that when an order is on the face of it not in terms of the rule a court cannot equally enter into an investigation whether the order of detention was in fact that is to say irrespective of what is stated in it in terms of the rule
In other words in such a case the State cannot be heard to say or prove that the order was in fact made for example to prevent acts prejudicial to public order which would bring it within the rule though the order does not say so
To allow that to be done would be to uphold a detention without a proper order
The rule does not envisage such a situation
The statements 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 is any doubt whether the rules have been strictly observed that doubt must be resolved in favour of the detenu
It is certainly more than doubtful whether law and order means the same as public order
I am not impressed by the argument that the 720 reference in the detention order to r 301 b shows that by law and order what was meant was public order
That is a most mischievous way of approaching the question
If that were right a reference to the rule in the order might equally justify all other errors in it
Indeed it might with almost equal justification then be said that a reference to the rule and an order of detention would be enough
That being so the only course open to us is to hold that the rules have not been strictly observed
If for the purpose of justifying the detention such compliance by itself is enough a non compliance must have a contrary effect
Carltona Ltd vs Commissioners of Works1 is an interesting case to which reference may be made in this connection
It turned on a statutory Regulation empowering a specified authority to take possession of land for the purposes mentioned in it in various terms but which term  did not include the expression  national interest
Under this Regulafion possession of certain premises of the Carltona Company was taken after serving a notice on it that was being done in the national interest
It was contended by the Carltona Company that it had been illegally deprived of the possession of its premises because the notice showed that possession was not being taken in terms of the Reaulation
This contention failed as it was held that the giving of the notice was not a prerequisite to the exercise of the powers under the Regulation and that the notice was no more than a notification that the authorities were exercising the powers
It was said that the notice was useful only as evidence of the state of the mind of the writer and that being so other evidence was admissible to establish the fact that the possession of the premises was being taken for the reasons mentioned in the Regulation
Our case is entirely different
It is not a case of a notice
Under r 301 b a person can be detained only by an order and there is no doubt that the order of detention has to be in writing
It is not a case where the order is only evidence of the detention having been made under the 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 1 1943 721 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 180CW
The Notification intended to be mentioned however was one No 1 1 15CW and the Notification No 180CW had been mentioned by mistake
It was under Notification No II 15CW that the power of the State Government to make an order of detention was delegated to the District Magistrate under the provisions of section 402 of the Act to which I have earlier referred
The reference to the notification was to indicate the delegation of power
The Notification actually mentioned in the order did not however contain the necessary delegation
The result was that the order did not show on its face that the District Magistrate who had made it had the necessary authority to do so
This mistake however did not vitiate the order at all
Nothing in the rules requires that an order of detention should state that the authority making it has the power to do so
It may be that an order made by an authority to whom the Government s power has not been delegated is a nullity and the order can be challenged on that ground
This may be one of the cases where an order good on its face may nonetheless be illegal
When the power of the person making the order is challenged the only fact to be proved is that the power to make the order had been duly delegated to him
That can be proved by the necessary evidence that is by the production of the order of delegation
That would be a case somewhat like the Carltona case
In spite of the mistake in the order as to the Notification delegating the power evidence can be given to show that the delegation had in fact been made
To admit such evidence would not be going behind the face of the order because what is necessary to appear on the face of the order is the satisfaction of the authority of the necessity for the detention for any of the reasons mentioned in r 30 1 b and not the authority of the maker of the order
The second thing to which I wish to refer is that it appeared from the affidavit sworn by the District Magistrate that prior to the making of the order he had recorded a note which raja in these words  Perused the report of the Senior section P Patna for detention of Dr Ram Manohar Lohia MP under rule 301 b of the Defence of India Rules on the ground that his being at 
C 1165 3 722 large is prejudicial to the public safety and maintenance of public order
From the report of the Sr section P Patna I am satisfied that Dr Ram Manohar Lohia MP aforesaid be detained under rule 301b of the Defence of India Rules
Accordingly I order that Dr Ram Manohar Lohia be detained  am unable to see that this note is of any assistance to the respondent State in this case
It is not the order of detention
The respondent State does not 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 301b 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 detention order mentions two grounds one of which is in terms of the rule while the other is not
What then is the effect of that  Does it cure the illegality in the order that I have earlier noticed  This question is clearly settled by authorities
In Shibban Lal Saksena vs The State of Uttar Pradesh1 it as held that such an order would be a bad order the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order
The order has therefore to be held illegal though it mentioned a ground on which a legal order of detention could have been based
I should also point out that the District Magistrate has not said in his affidavit that he would have been satisfied of the necessity of the detention order only 1  723 for the reason that it was necessary to detain Dr Lohia to prevent him from acting in a manner prejudicial to public safety
In the result in my view the detention order is not under the Rules
The detention of Dr Lohia under that order is not legal and cannot be justified
He is entitled to be set at liberty and I would order accordingly
Hidayatullah J Dr Ram Manohar Lohia MP has filed this petition under article 32 of the Constitution asking for a writ of habeas corpus for release from detention ordered by the District Magistrate Patna under Rule 301b of the Defence of India Rules 1962
He was arrested at Patna on the night between 9th and 10th August 1965
As it will be necessary to refer to the terms of the order served on him it is reproduced here ORDER No 3912 C Dated Patna the 9th August 1965 Whereas 1 J N Sahu District Magistrate Patna am satisfied with respect to the person known as Dr Ram Manohar Lohia Circuit House Patna 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 clause i of rule 30 of the Defence of India Rules 1962 read with Notification No 180 CW dated the 20th March 1964 of the Government of Bihar Political Special Department I hereby direct that the said Dr Ram Manohar 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 140 Dr Lohia was lodged in the Hazaribagh Central Jail at 3 30 pm 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 724 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 exercise his mind in each individual case
He contended that his detention under Rule 30 1 b was illegal because according to him that rule dealt with prejudicial activities in relation to the defence of India and civil defence and not with maintenance of law and order of a purely local character
He alleged that the arrest was mala fide and malicious that it was made to prevent him from participating in the House of the People which was to go into Session from August 16 and particularly to keep him away from the debate on the Kutch issue
He further alleged that he had only addressed a very large gathering in Patna and had disclosed certain things about the Bihar Government which incensed that Government and caused them to retaliate in this manner and that detention was made to prevent further disclosures by him
In answer to Dr Lohia s affidavit two affidavits were filed on behalf of the respondents
One affidavit filed by the District Magistrate Patna denied that there was any malice or mala fides in the arrest of Dr Lohia
The District Magistrate stated that he had received a report from the Senior Superintendent of Police Patna in regard to the conduct and activities of Dr Lohia and after considering the report he had ordered Dr Lohia s detention to prevent him from acting in any manner prejudicial to the public safety and maintenance of public order
He stated further that he was fully satisfied that the forces of disorder which were sought to be let loose if not properly controlled would envelop the whole of the 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
He said that the report of the Senior Superintendent of Police Patna contained facts which he considered sufficient for taking the said action but he could not disclose the contents of that report in the public interest
He sought to correct what he called a slip in the order passed by him by stating that notification No 11155C dated 11th August 725 1964 was meant instead of the notification mentioned there
He stated further that as the disturbance was on a very large scale it was thought expedient to keep ready typed copies of detention orders and to make necessary alterations in them to suit individual cases at the time of the actual issuance of 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 9865
Perused the report of the Senior SP Patna for detention of Dr Ram Manohar Lohia MP 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 SP Patna I am satisfied that Dr Ram Manohar Lohia MP aforesaid be detained under rule 301b of the D fence of India Rules
Accordingly I order that Dr Ram Manohar Lohia be detained under rule 301b of the Defence of India Rules read with Notification No 180CW dated 20364 in the Hazaribagh Central Jail until further orders
Send four copies of the warrant of arrest to the Sr SP Patna for immediate compliance
He should return two copies of it after service on the detenu
Sd J N Sahu District Magistrate Patna
The second affidavit was sworn by Rajpati Singh Police Inspector attached to the Kotwali Police Station Patna
He stated in his affidavit that the order was served on Dr Lohia at 1 40 AM on August 1O 1965 and not at midnight
He denied that Dr Lohia was arrested earlier or that at the time of his arrest he was informed 7 26 that the arrest was for an offence or offences of arson
He admitted however that he had told him that cases of arson and toot had taken place
He affirmed that there was no charge of arson against Dr Lohia
Dr Lohia filed a rejoinder affidavit and in that affidavit he stated that the internal evidence furnished by the order taken with the counter affidavits disclosed that his arrest and detention were patently illegal
He pointed out that while Rule 301b provided that detention could be made for the maintenance of public order the order stated that Dr Lohia was arrested for maintenance of law and order
He characterised the counter affidavits as full of lies and narrated other facts intending to show that there was a conspiracy to seal his mouth so that disclosures against the Bihar Government might not be made
This represents the material on which the present petition is based or opposed
The petition was argued by Dr Lohia in person though he was receiving assistance in constructing his arguments
His contentions are that he is not being detained under the Defence of India Rules but arbitrarily that even if he is being detained under the said Rules the law has been flagrantly violated that the order passed against him is mala fide and that the District Magistrate did not exercise the delegated power but went outside it in various ways rendering detention illegal
On behalf of the State a preliminary objection is raised that the application itself is incompetent and that by the operation of article 359 read with the President s Order issued under that Article on November 3 1962 Dr Lohia s right to move the Supreme Court under article 32 of the Constitution is taken away during the period of emergency proclaimed under article 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 301b 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 301b and section 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 727 order
We shall go into the last contention more elaborately after dealing with the preliminary objection
Questions about the right of persons detained under the Defence of India Rules to move the Court have come up frequently before this Court and many of the arguments which are raised here have already been considered in a series of cases
For example it has been ruled in Mohan Choudhury vs Chief Commissioner Tripura1 that the right of any person detained under the Defence of India Rules to move any court for the enforcement of his rights conferred by articles 21 and 22 of the Constitution remains suspended in view of the President s Order of November 3 1962
It has also been ruled that such a person cannot raise the question that the Defence of India Act or the Rules are not valid because if allowed to do so that would mean that the petitioner s right to move the court is intact
Other questions arising from detentions under the Defence of India Rules were further considered in Makhan Singh vs The State of Punjab1
It is there pointed out that although the right of the detenu to move the Court is taken away that can only be in cases in which the proper detaining authority passes a valid order of detention and the order is made bona fide for the purpose which it professes
It would therefore appear from the latter case that there is an area of enquiry open before a court will declare that the detenu has lost his right to move the court
That area at least embraces an enquiry into whether there is action by a competent authority and in accordance with Defence of India Act and the Rules thereunder
Such an enquiry may not entitle the court to go into the merits of the case once it is establish Id that proper action has been taken for the satisfaction is subjective but till that appears the court is bound to enquire into the legality of the detention
It was contended that Makhan Singh s2 case arose under article 226 and that what is stated there applies only to petitions under that article
This is a misapprehension
The ruling made no difference between the article 32 and article 226 in the matter of the bar created by article 359 and the President s Order
What is stated there applies to petitions for the enforcement of Fundamental Rights whether by way of article 32 or article 226
Mr Verma appearing for the State of Bihar however contends that the area of the enquiry cannot embrace 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 1  2 1964 4 SCR 797
728 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 article 32 made no mention of the writ of habeas corpus
According to him an order under Rule 301b 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 article 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 article 19 during the Emergency and article 359 permitted the suspension of the enforcement of the rights conferred by Part 111
That article reads  359
Suspension of the enforcement of the rights conferred by Part III during emergencies 1 Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
2 An order made as aforesaid may extend to the whole or any part of the territory of India
3 Every order made under clause 1 shall as soon as may be after it is made be laid before each House of Parliament
 The President issued an order on November 3 1962
The Order reads  ORDER New Delhi the 3rd November 1962
GSR 1454
In exercise of the powers conferred by clause 1 of article 359 of the Constitution the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause 1 of article 352 thereof on the 26th October 1962 is in force if such person has been deprived of any such rights under the Defence of India Ordinance 1962 4 of 1962 or any rule or order made thereunder
No F 462 PollSpl V VISWANATHAN Secy As a result of the above Order the right of any person to move any court for the rights conferred by articles 21 and 22 of the Constitution remains suspended if such person is deprived of any such rights under the Defence of India Ordinance 1962  now the Defence of India Act 1962 or any rule or order made thereunder
No doubt as the article under which the President s Order was passed and also that Order say the right to move the court is taken away but that is in respect of a right conferred on any person by articles 21 and 22 and provided such person is deprived of the right under the Defence of India Ordinance now the Act or any rule or order made thereunder
Two things stand forth
The first is that only the enforcement in a court of law of rights conferred by articles 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 articles 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 article 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 according to the procedure established by the laws of the country
In other words he could not invoke the procedure established by ordinary law
But the President did not make lawless actions lawful
He only took away the fundamental right in article 21 in respect of a person proceeded against under the Defence of India Act or any rule or order made thereunder
Thus a person so proceeded could not claim to be tried under the ordinary law or bring an action under the ordinary law
But to be able to say that the right to move the court for the enforcement of rights under article 21 is suspended it is necessary to establish that such person has been deprived of any such right under the Defence of India Act or any rule or order made thereunder that is to say under the authority of the Act
The action of the authorities empowered by the Defence of India Act is not completely shielded from the scrutiny of courts
The scrutiny with reference to procedure established by laws other than the Defence of India Act is of course shut out but an enquiry whether the action is justified under the Defence of India Act itself is not shut out
Thus the State Government or the District Magistrate cannot add a clause of their own to the Defence of India Act or even the Rules and take action under that clause
Just as action is limited in its extent by the power conferred so also the power to move the court is curtailed only when there is strict compliance with the Defence of India Act and the Rules
The Court will not enquire whether any other law is not followed or breached but the Court will enquire whether the Defence of India Act or the Rules have been obeyed or not
That part of the enquiry and consequently the right of a person to move the court to have that enquiry made is not affected
The President s Order next refers to article 22
That Article creates protection against illegal arrest and detention
Clause 1 confers some rights on the person arrested
Clause 2 lays down the procedure which must be followed after an arrest is made
By cl
3 the first two clauses do not apply to an alien enemy or to a person arrested or detained under any law providing for preventive detention
Clauses 4 5 6 and 7 provide for the procedure for dealing with persons arrested or detained under any law providing for preventive detention and lay down the minimum or compulsory requirements
The provisions of article 22 would have applied to arrest and detentions under the Defence of India 731 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 article 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 article 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 article 226 of the Constitution but in considering the bar of article 359 read with the President s Order there is no difference between a petition under that article and a petition under article 32
It follows
therefore that this Court acting under article 32 on a petition for the issue of a writ of habeas corpus may not allow claims based on other laws or on the protection of article 22 but it may not and indeed must not allow breaches of the Defence of India Act or the Rules to go unquestioned
The President s Order neither says so nor is there any such intendment
There is however another aspect which needs to be mentioned here
That is the question of want of good faith on the part of those who take action and whether such a plea can be raised
This topic was dealt with in Makhan Singh s case1
At page 828 the following observation is to be found  Take also a case where the detenu moves the court for a writ of Habeas Corpus on the ground that his detention has been ordered mala fide
It is hardly necessary to emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged
It is true that a mere allegation that the detention is mala fide would not be enough the detenu will have to prove the mala fides
But if the mala fides are alleged the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 3591 and the Presi 1 1964 4 SCR 797
732 dential order
That is an other kind of plea which is out side the purview of article 3591
 Mr Verma however contends on the authority of Smith vs East Elloe Rural District Cormical  Others1 that the validity of the orders under the Defence of India Rules 1962 cannot be challenged on the ground of bad faith when the action is otherwise proper
That case dealt with the Acquisition of Land Authorization Procedure Act 1946 9  10 Geo 6 Ch 49
Paragraph 15  1  of Part IV of Schedule to that Act provided If any person aggrieved by a compulsory purchase order desires to question the validity thereof on the ground that the authorization of a compulsory purchase thereby granted is not empowered to be granted under this Act he may within six weeks from the date on which notice of the confirmation or making of the make an application The appellant more than six weeks after the notice had been 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 paragraph 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 not depart from the purpose
Vast powers in the public interest are granted but under strict conditions
If a person under colour of exercising 1  733 the statutory power acts from some improper or ulterior motive he acts in bad faith
The action of the authority is capable of being viewed in two ways
Where power is misused but there is good faith the act is only ultra vires but where the misuse of power is in bad faith there is added to the ultra vires character of the act another vitiating circumstance
Courts have always acted to restrain a misuse of statutory power and the more readily when improper motives underlie it
The misuse may arise from a breach of the law conferring the power or from an abuse of the power in bad faith
In either case the courts can be moved for we do not think that article 359 or the President s Order were intended to condone an illegitimate enforcement of the Defence of India Act
We now proceed to examine the contentions of Dr Lohia by which he claims to be entitled to have the order of the District Magistrate set aside
It is convenient to begin with the allegation of want of good faith
Dr Lohia alleges that there was a conspiracy between the Central Government the State of Bihar the Senior Superintendent of Police and the District Magistrate Patna to stifle his disclosures against the Bihar Government the Chief Minister and others
He also alleges that he was arrested for a substantive offence under the Indian Penal Code but the arrest has been converted into preventive detention to avoid proof in a court of law
He says that he was about to leave Patna and if the train was not late he would have gone away and he hints that his detention was made to prevent him from taking part in the Session of Parliament
The District Magistrate and the Inspector of Police deny these allegations
The District Magistrate has given the background of events in which he made the order on his responsibility
On reading the affidavits on both sides we are satisfied that the contentions of Dr Lohia are ill founded and that the order of detention was made by the District Magistrate in good faith
There is no dispute that the District Magistrate was duly authorized to act under Rule 30 of the Defence of India Rules 1962
Dr Lohia however says that the order is in flagrant disregard of the requirements of the Defence of India Act 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 notifica 7 34 tion 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 that a grave emergency exists whereby the security of India is threatened by external aggression AND WHEREAS it is necessary 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 We may next read section 3 which confers power to make rules 3
Power to make rules
1 The Central Government may by notification in the Official Gazette make such rules as appear to it necessary or expedient for securing the defence of India and civil defence the public safety the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community
 Then by way of illustration and without prejudice to the generality of the powers conferred by sub section
1 certain specific things are mentioned for which provision may be made by rules
Clause 15 provides  73 5 15 Notwithstanding anything in any other law for the time being in force i the 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 of being of hostile origin or of having acted acting being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence the security of the State the public safety or interest the maintenance of public order India s relations with foreign States the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner ii the prohibition of such person from entering or residing or remaining in any area iii the compelling of such person to reside and remain in any area or to do or abstain from doing anything and iv the review of orders of detention passed in pursuance of any rule made under sub clause 1 We need not trouble ourselves with the other clauses
Section 44 next provides  44
Ordinary avocations of life to be interfered 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 section 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 the argument of Dr Lohia on No  1 above
Rule 30 with which we are primarily concerned consists of eight sub rules
We are concerned only with sub rule 1
That rule reads  30
Restriction of movements of suspected persons restriction orders and detention orders 1 The Central Government or the State Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the 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 military operations or the maintenance of supplies and services essential to the life of the community it is necessary so to do may make an order a b directing that he be detained Under section 40 2 of the Defence of India Act the State Government may by order direct that the powers conferred by the Rules may be exercised by any officer or authority in such circumstances and under such conditions as may be specified in the direction
A special limitation was indicated in section 3 15 of the Act where authority is given for making rules in connection with the apprehension and detention in custody of persons that the delegation should not be made to an officer below the rank of a District Magistrate
By virtue of these various powers the State Government issued a notification on March 20 1964 authorising all District Magistrates to exercise the powers of Government under Rule 30 1 b
737 That notification was later rescind Id by another notification issued on June 5 1964
A fresh notification No 11155 C was issued on August 11 1964
This was necessary because of a mistake in the first notification
The new notification reads  No 11155 C
In exercise of the powers con ferred by sub section 2 of section 40 the Defence of India Act 1962 Act 51 of 1962 the Governor of Bihar is pleased to direct that the powers exercisable by the State Government under clause b of sub rule 1 of rule 30 of the Defence of India Rules 1962 shall be exercised by all District Magistrates within their respective jurisdictions
By order of the Governor of Biharc M K Mukharji Secretary to Government
Dr Lohia contends that the District Magistrate in his affidavit 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 402 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 order against him does not necessarily spell out extraterrestrial in the sense suggested but is really designed to assess properly the potentiality of danger which is the main object of the rule to prevent
We find nothing wrong with the order on the score of jurisdiction and argument No i stated above must fail
Argument No ii is up
C  I65 4 7 38 not of any substance
There was a clerical error in mentioning the notification and the error did not vitiate the order of detention
This brings us to the last contention of Dr Lohia and that is the most serious of all
He points out that the District Magistrate purports to detain him with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order and argues that the District Magistrate had misunderstood his own powers which were to prevent acts prejudicial to public order and therefore the detention is illegal
On the other side Mr Verma contends that the Act and the Rules speak of public order which is a concept much wider in content than the con cept of law and order and includes the latter and whatever is done in furtherance of law and order must necessarily be in furtherance of public order
Much debate took place on the meaning of the two expressions
Alternatively the State of Bihar contends that the order passed by the District Magistrate prior to the issue of the actual order of detention made use of the phrase maintenance of public order and the affidavit which the District Magistrate swore in support of the return also uses that phrase and therefore the District Magistrate was aware of what his powers were and did exercise them correctly and in accordance with the Defence of India Act and the Rules
We shall now consider the rival contentions
The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered
In its long title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public
safety and interest the defence of India and civil defence
The expressions public safety and interest between them indicate the range of action for maintaining security peace and tranquility of India whereas the expressions defence of India and civil defence connote defence of India and its people against aggression from outside 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 section 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 739 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 iii the public safety or interest iv the maintenance of public order v India s relations with foreign states vi the maintenance of peaceful conditions in any part or area of India or vii the efficient conduct of military operations It will thus appear that security of the state public safety or interest maintenance of public order and the maintenance of peaceful conditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another
Then follows rule 30 which repeats the above conditions and per mits detention of any person with a view to preventing him from acting in any of the above ways
The argument of Dr Lohia that the conditions are to be cumulatively applied is clearly untenable
It is not necessary to analyse rule 30 which we quoted earlier and which follows the scheme of section 315
The question is whether by taking power to prevent Dr Lohia from acting to the prejudice of law and order as against public order the District Magistrate went outside his powers
The subject of preventive detention has been discussed almost threadbare and one can hardly venture in any direction without coming face to face with rulings of courts
These cases are now legion
It may be taken as settled that the satisfaction of the detaining authority cannot be subjected to objective tests that the courts are not to exercise appellate powers over such authorities and that an order proper on its face passed by a competent authority in good faith is a complete answer to a petition such as this
740 The rulings in our country adopt this approach as do the English Courts
In England one reason given for the adoption of this approach was that the power was entrusted to the Home Secretary and to the Home Secretary alone
In India courts are ordinarily satisfied on the production of a proper order of detention made in good faith by an authority duly authorised and have not enquired further even though the power is exercised by thousands of officers subordinate to the Central and State Governments as their delegates
When from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers there is need to pause and enquire
This is more so when the exercise of power is at the lowest level permissible under the 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 stated at once that the District Magistrate did not specify it as such in his affidavit
He filed an earlier order by him in which he had used the words public order and which we have quoted earlier
That order did not refer to his own state of the mind but to the report of the Senior Superintendent of Police
In his affidavit he mentioned public order again but did not say that the words law and order in his order detaining Dr Lohia were a slip
He corrected the error about the notification but naively let pass the other and more material error without any remark
Before us every effort possible was made to reconcile public order with law and order as indeed by a process of paraphrasing it is possible to raise an air of similitude between them
Such similitude is possible to raise even between phrases as dissimilar as for preventing breach of the peace in the 741 interest of the public for protecting the interests of a class of persons for administrative reasons and for maintaining law and order
We cannot go by similitude
If public order connotes something different from law and order even though there may be some common territory between them then obviously the District Magistrate might have traversed ground not within public order
It would then not do to say that the action is deferrable to one power rather than the other just as easily as one reconciles diverse phrases by a gloss
When the liberty of the citizen is put within the reach of authority and the scrutiny from courts is barred the action must comply not only with the substantive requirements of the law but also with those forms which alone can indicate that the substance has been complied with
It is therefore necessary to examine critically the order which mentioned law and order with a view to ascertaining whether the District Magistrate did not act outside his powers
Before we do so we find it necessary to deal with an argument of Mr Shastri who followed Mr Verma
He contends that there is no magic in using the formula of the Act and Rules for the language of the Act and the Rules can be quoted mechanically
We regret such an attitude
The President in his Order takes away the fundamental rights under articles 21 and 22 from a person provided he has been detained under the Defence of India Act or the rules made thereunder
The Order is strict against 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 vs Commissioners of Works and Others1
Curiously enough it was 1 742 brought to our notice by Dr Lohia and not by the other side
That case arose under Regulation 511 of the Defence General Regulations in England during the last World War
The Regulation read  A competent authority if it appears to that authority to be necessary or expedient so to do in the interests of the public safety the defence of the realm or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community may take possession of any land and may give such directions as appear to the competent authority to be necessary or expedient in connection with the taking of possession of that land There was an order against Carltona Ltd by the Commissioner of Works requisitioning the factory
The order read I have to inform you that the department have come to the conclusion that it is essential in the national interest to take possession of the above premises occupied by you It was objected on behalf of the Company that the mind was not directed to any one of the various heads mentioned in the Regulation which were put in the alternative
Lord Greene MR speaking on behalf of Lord Goddard then Lord Justice and Lord du Parcq then Lord Justice observed  It was said that it was the duty of the person acting in the capacity of a competent authority  to examine the facts of the case and consider under which if any of those various heads the matter came and it is said that the assistant secretary did nothing of the kind
It is to be observed that those heads are not mutually exclusive heads at all
They overlap at every point and many matters will fall under two or more of them or under all four
I read the evidence as meaning that the assistant secretary seeing quite clearly that the case with which he was dealing and the need that he wished to satisfy was one which came under the regulation did not solemnly sit down and ask himself whether it was for the efficient prosecution of the war that this storage was required for maintaining supplies and services essential to the life of the community
He took the view that it was required either for all those purposes or at any 743 rate for some of them and I must confess it seems to me that it would have been a waste of time on the facts of this case for anyone seriously to sit down and ask himself under which particular head the case fell
He 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 vs Lloyd George
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 supplies and services
But when a person is apprehended and detained it may be necessary to set out with some accuracy what he did or was likely to do within the provisions of Rule 30 to merit the detention
The use of one phrase meaning a different thing in place of that required by the Act would not do unless the phrase imported means the same thing as the phrase in the Act
Here the phrase used is maintenance of law and order and we must see how that phrase fits into the Rule which speaks of maintenance of public order
The words public order were considered on some previous occasions in this Court and the observations made them are used to prove that maintenance of public order is the same thing as maintenance of law and order
We shall refer to some of these observations before we discuss the two phrases in the context of the Defence of India Rules
Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das vs Province of Bihar2 where the Court dealing with item 1 of Provincial List 7th Schedule in the Government of India Act 1935 which read 1
at 548
at 704
744 lm15
Public order but not including the use of His Majesty s naval military or air forces in aid of the civil power  observed that public Order with which that item began was a most comprehensive term
Reference is also made to Ramesh Thapar vs State of Madras1 where this Court dealing with the same subject matter also observed   Public order is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established it must be taken that public safety  is used as a part of the wider concept of public order and referring to Entry 3 in List III Concurrent List of the 7th Schedule of the Constitution which includes the security of a State and maintenance of public order as distinct topics of legislation observed in the field of public order or tranquillity marking off may be roughly the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind Fazl Ali J took a different view which he had expressed more fully in Brijbhushan and Another vs the State of Delhi  2  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 tran quillity
 Both the aspects of the matter were again before this Court in The Superintendent Central Prison Fatehgarh vs Ram Manohar Lohia3 when dealing with the wording of clause 2 of article 19 as amended by the Constitution First Amendment Act 1951 it 1
at 598
2  3  745 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 was inserted in article 192 of the Constitution by the Constitution First Amendment Act 1951 with a view to bring in offences involving breach of purely local significance within the scope of article 19   Summing up the position as he gathered from the earlier cases the learned Judge observed 
Public ordee is synonymous with public safety and tranquillity it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution civil strife war affecting the security of the State 
These observations determine the meaning of the words public order in contradistinction to expressions such as public safety security of the State
They were made in different contexts
The first three cases dealt with the meaning in the legislalative Lists as to which it is settled we must give as large a meaning as possible
In the last case the meaning of public order was given in relation to the necessity for amending the Constitution as a result of the pronouncements oil this Court
The context in which the words were used was different the occasion was different and the object in sight was different
We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order
It follows that if such a person is not detained public disorder is the apprehended result
Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings
Does the expression public ordee  take in every kind of disorder or only some  The answer to this serves to distinguish public order from law and order because the latter undoubtedly takes in all of them
Public order if disturbed must lead to public disorder
Every breach of the peace does not lead to public disorder
When two drunkards quarrel and fight there is disorder but not public disorder
They can be dealt with under the powers 746 to maintain law and order but cannot be detained on the ground that they were disturbing public order
Suppose that the two fighters were of rival communities and one of them tried to raise communal passions
The 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 301b 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 order just as an act may affect public order but not security of the State
By using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules
We do not know the material on which the District Magistrate acted
If we could examine the reasons we may be able to say whether the action can still be said to fall within the other topic public safety
That enquiry is not open to us
If we looked into the matter from that angle we would be acting outside our powers
The order on its face shows two reasons
There is nothing to show that one purpose was considered to be more essential than the other
We are not therefore certain that the District Magistrate was influenced by one consideration and not both
The order of detention is a warrant which authorises action
Affidavits hardly improve the order as it is
If there is allegation of bad faith they can be seen to determine the question of good faith
If mistaken identity is alleged we can satisfy ourselves about the identity
But if action is taken to maintain law and order instead of maintaining public order there is room to think that the powers were misconceived and if there is such a fundamental error then the 7 47 action remains vulnerable
It will not be possible to say that although maintenance of law and order were specified what was considered was the problem of maintenance of public order
The error is an error of a fundamental character and unlike quoting a wrong notification
It is thus apparent why one error in the order of detention is admitted but not the other and why with elaborate arguments it is attempted to establish that public order involves elements more numerous than law and order where in fact the truth is the other way
It may be mentioned that Dr Lohia claimed that the satisfaction of the President under article 359 is open to scrutiny of the court
We have not allowed him to argue this point which is now concluded by rulings of this Court
In our judgment the order of the District Magistrate exceeded his powers
He proposed to act to maintain law and order and the order cannot now be read differently even if there is an affidavit the other way
We have pondered deeply over this case
The action of the District Magistrate was entirely his own
He was no doubt facing a law and 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 that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and 748 order it is necessary to make an order that he be detained
Now therefore in the 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 180CW dated the 20th March 1964 of the Govt
of Bihar Political Special Department 1 hereby direct that the said Dr Ram Manohar Lohia be arrested by the police wherever found and detained in the Central Jail Hazaribagh until further orders
 If this order is valid Dr Lohia cannot move this Court for enforcement of his rights conferred by articles 21 and 22 of the Constitution in view of the Order of the President dated November 3 1962 in the exercise of powers conferred on him by cl
1 of article 359 of the Constitution
Dr Lohia has challenged the validity of this order on several grounds
I agree with the views expressed by Hidayatullah J about all the contentions except one
That contention is that the appropriate authority is not empowered to order detention with a view to prevent a person from acting in any way prejudicial to the maintenance of law and order
It is urged that though the District Magistrate could order the detention of the petitioner with a view to prevent him from acting in any way prejudical to the public safety and the maintenance of public order he could not order detention with a view to prevent the petitioner from acting prejudicially to the public safety and maintenance of law and order as the latter object being not synonymous with the object of preventing him from acting prejudicial to public order is outside the purview of the provisions of r 301 of the rules and that therefore the entire order is bad
I do not agree with this contention
Under r 301b the District Magistrate could have made the order of detention with respect to Dr Lohia if he was satisfied that he be detained with a view to prevent him from acting in any manner prejudicial to public safety or maintenance of public order
Such satisfaction is subjective and not objective
The Court cannot investigate about the adequacy of the reasons which led to his satisfaction
The Court can however investigate whether he exercised the power under r 30 honestly and bona fide or not ie whether he 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 749 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 person for a purpose mentioned in r 30 though the purpose has been inaccurately stated in the detention order
The existence of the satisfaction required by r 30 does not depend on what is said in the detention order and can be established by the District Magistrate by his affidavit
We have therefore to examine whether the District Magistrate was really satisfied about the necessity to detain Dr Lohia with a view to prevent him from acting in a manner prejudicial to public safety and maintenance of public order
The impugned order was passed under r 30 1 b of the rules
The District Magistrate decided to detain the appellant with two objects firstly to prevent him from acting in any way prejudicial to public safety and secondly to prevent him from acting in any way prejudicial to the maintenance of law and order
The District Magistrate has even in the absence of any such contention as under discussion and which was raised after the filing of the District Magistrate s affidavit said that having regard to inter alia the circumstances which were developing in Patna on August 9 1965 he was fully satisfied in view of the report made by the Senior Superintendent of Police Patna in regard to Dr Lohia s conduct and activities that it was necessary to direct that he be detained in order to prevent him from acting further in any manner prejudicial to the public safety and maintenance of public order
There is no reason to disbelieve his statement
His original order set out below bears out this statement of his in his later affidavit  Perused the report of the Senior section P Patna for detention of Dr Ram Manohar Lohia MP under rule 7 50 301 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 section P Patna I am satisfied that Dr Ram Manohar Lohia MP aforesaid be detained under rule 301 b of the Defence of India Rules
Accordingly I order that Dr Ram Manohar Lohia be detained under rule 30 1 b of the Defence of India Rules read with Notification No 180CW dated 20 3 64 in the Hazaribagh Central Jail until further orders
 The District Magistrate s omission to repeat in the second sentence where he speaks of his satisfaction that Dr Lohia be detained with a view to preventing him from 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 by him earlier
In his rejoinder affidavit Dr Lohia states with reference to the alleged forces of disorder referred to by the District Magistrate that even if he was promoting what the executive would call forces of disorder  he was doing so not with a view to impair the defences of the country but further to strengthen them that the various allegations made against him were extraneous to the scope and purpose of the legislative provisions of the proclamations of emergency which had no rational relationship to the circumstances which were developing in Patna on August 9 1965
751 Even in his original affidavit Dr Lohia stated in para 6 that  It is also revealing to note that after the events of the 9th August for which responsibility should have been sought to be fixed either through trial or enquiry on me or Government or anybody else I addressed a crowd of nearly a lakh for over an hour after seven in the evening
 The setting of the events that appear to have happened at Patna on August 9 1965 further bear out the statement of the District Magistrate that he was satisfied of the necessity to detain Dr Lohia in order to prevent him from acting in a manner prejudicial to public order
Further the expression maintenance of law and order is not used in cl
1 of r 30
The corresponding expression used therein is maintenance of public order 
The two expressions are not much different
The expression public order  has been construed by this Court in a few cases the latest of them being The Superintendent Central Prison Fatehgarh vs Ram Manohar Lohia1 wherein it was said at p 839   Public order  is synonymous with public safety and tranquillity it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution civil strife war affecting the security of the State The expression maintenance of law and order  would cover maintenance of public safety and tranquillity 
it may be as urged for the petitioner an expression of wider import than public order but in the context in which it is used in the detention order and in view of its use generally it should be construed to mean maintenance of law and order in regard to the maintenance of public tranquillity
It is not usually used 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 vs State of Pepsu2
In that case certain persons were 1
1960 2 CSR821
AIR1954 SC 276
7 52 detained under an order under section 3  1  of the  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 31 of the  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 foreign powers or the security of India or ii the security of the State or the maintenance of public order or iii b   make an order directing that such person be detained This Court used the expression maintenance of law and ordee in place of maintenance of public order  used in section 3  1  a ii at three places in paras 4 and 5 of the judgment
I do not refer to these to show that the Court has construed the expression maintenance of public order  as maintenance of law and ordee  but to reinforce my view that the expression maintenance of law and order  is generally used for maintenance of public safety and tranquillity  which is covered by the expression public ordee
When this Court used this expression in place of maintenance of public order  I cannot conclude as urged by the petitioner that the District Magistrate s using the expression maintenance of law and order  in place of maintenance of public ordee is any indication of the fact that he had not applied his mind to the requirements of the provisions of r 301 or had not actually come to the conclusion that it was necessary to detain Dr Lohia with a view to prevent him from acting in any manner prejudicial to the maintenance of public order
If the expression maintenance of law and order  in the im pugned order be not construed as referring to maintenance of public order  the impugned order cannot be said to be invalid in 753 view of it being made with a double objective ie with the object of preventing Dr Lohia from acting prejudicially to the public safety and from acting prejudicially to the maintenance of law and order
If the District Magistrate was satisfied as the impugned order and the affidavit of the District Magistrate show that he was satisfied that it was necessary to detain Dr Lohia with a view to preventing him from acting prejudicially to public safety that itself would have justified his passing the impugned order
His satisfaction with respect to any of the purposes mentioned in r 30 1 which would justify his ordering the detention of a person is sufficient for the validity of the order
There is no room for considering that he might not have passed the impugned order merely with one object in view the object being to prevent Dr Lohia 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 vs State of Madras1
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 Consti tution would have been in accordance with the law held valid
The validity of the orders passed under a valid law the Defence of India Act and the rules have to be assumed to be valid depends on their being made by the appropriate authority in accordance with the law empowering it to pass the orders
The question before us is also not at par with the question which often arises in construing the validity of detention orders passed under the for the reason that some of the grounds for the satisfaction of the appropriate authority were irrelevant or non existent
The presence of such grounds raised the question whether the remaining good grounds would 1  2 C  I65 5 7 54 have led the authority to the requisite subjective satisfaction for ordering detention
In the present case however the question is different
The question is whether the District Magistrate would have made the order of detention on his satisfaction merely to the effect that it was necessary to detain Dr Lohia with a view to prevent him from acting in a manner prejudicial to public safety
It is not that his satisfaction is based on two grounds one of which is irrelevant or non existent
Even in such cases this Court has held in Dwarka Das State of J  K1 The principle underlying all these decisions is this
Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters if that satisfaction is stated to be based on a number of grounds or for a variety of reasons all taken together and if some out of them are found to be non existent or irrelevant the very exercise of that power is bad
That is so because the matter being one for subjective satisfaction it must be properly based on all the reasons on which it purports to be based
If some out  of them are found to be non existent or irrelevant the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons
To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority
In applying these principles however the Court must be satisfied that the vague or irrelevant grounds are such as if excluded might reasonably have affected the subjective satisfaction of the appropriate authority
It is not merely because some ground or reason of a compara tively 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 1  168
755 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 articles 21 and 22 of the Constitution in view of the President s Order under article 3591 of the Constitution
I would dismiss this petition
Mudholkar J I agree that the petition of Dr Ram Manohar Lohia under article 32 of the Constitution be granted and would briefly indicate my reasons for granting it
At the outset I shall consider an objection of Mr section P Varma on behalf of the State as to the tenability of the petition
The objection is two fold
In the first place according to him in view of the Proclamation made by the President under article 359 this Court has no jurisdiction to entertain it
In the second place his contention is that the order of detention made against the petitioner being one under the Defence of India Rules he cannot challenge the validity of his detention thereunder in any court
In support of these contentions Mr Varma relies on the decision of this Court in Mohan Choudhury vs Chief Commissioner Tripura 1
In that case this Court has while holding that the right of a person whose detention has been ordered under the Defence of India Rules to move any court for the enforcement of his rights under article 21 of the Constitution is suspended
during the continuance of the emeregency declared by the President by a Proclamation under article 352 held that the powers conferred on this Court by article 32 of the Constitution are not suspended
It is true that where a person has been detained under the Defence of India Rules he cannot move this Court under article 32 for the enforcement of his right under article 21 and so there will be no occasion for this Court to exercise its powers under that article in such a case
But what would be the position in a case where an order for detention purporting to be made under the Defence of India Rules was itself one which was beyond the scope of the Rules  For before an entry into the portals of this Court can be denied to detenu he I must be shown an order under r 301 of the Defence of India Rules made by a competent authority stating that it is satisfied 1  7 56 that the detenu is likely to indulge in activities which will be prejudicial to one or more of the matters referred to in the rule
If the detenu contends that the order though it purports to be under r 301 of the Rules was not competently made this Court has the detenu contends that the order
though it purports to be under order if the Court finds that it was not competently made or was ambiguous it must exercise its powers under article 32 of the Constitution entertain his petition thereunder and make an appropriate order
In this case the District Magistrate Patna purported to make an order under r 3 0  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 301 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 military operations or the maintenance of supplies and services essential to the life of the community
I find it difficult to accept Dr Lohia s argument that the appropriate authority must entertain an apprehension that the person to be detained is likely to participate in every one of the activities referred to in the rule
To accept it would be apart from making a depar ture from the rules of grammar for doing which no valid grounds exist making not only the rule in question but also section 3 of the Defence of India Act where similar language is used almost ineffective
What has however to be considered is his other argument
The question posed by the argument is whether an authority competent to make an order under the aforesaid provision can make such an order on the ground that the authority feels it necessary to prevent a person from acting in any manner prejudicial to the maintenance of law and order
The expression law and ordee  does not find any place in the rule and is not synonymous with public order 
It s to me that law and order is a comprehensive expression 757 in which would be included not merely public order but matters such as public peace tranquillity orderliness in a locality or a local area and perhaps some other matters
Public order is something distinct from order or orderliness in a local area
Under r 301 no power is conferred upon that authority to detain a person on the ground that it is necessary so to do in order to prevent that person from acting in a manner prejudicial to the main tenance of order in a local area
What is it that the District Magistrate Patna had in mind when he ordered the detention of the petitioner  Was the apprehension entertained by the District Magistrate that Dr Lohia if left at large was likely to do some thing which will imperil the maintenance of public order generally or was it that he apprehended that Dr Lohia s activities may cause disturbances in a particular locality There is thus an ambiguity on the face of the order and therefore the order must be held to be bad
No doubt the order also refers to the apprehension felt by the District Magistrate about Dr Lohia s acting in a manner prejudicial to public safety
But then the question arises what is it that weighed with the District Magistrate the apprehension regarding public safety or an apprehension regarding 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


Summary:
Rule 301b of the Defence of India Rules 1962 provided that a State Government might if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial inter alia to public safety and maintenance of public order it is necessary to do so order him to be detained
A Disrict Magistrate to whom the power of the Government of the State of Bihar had been delegated under section 402 of the Defence of India Act 1962 ordered the detention of the petitioner under the rule
The order stated that the District Magistrate was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the public safety and the maintenance of law and order it was necessary to detain him
Prior to the making of the order the District Magis trate had however recorded a note stating that having read the report of the Police Superintendent that the petitioner s being at large was prejudicial to public safety and maintenance of public order he was satisfied that the petitioner should be detained under the rule
The petitioner moved this Court under article 32 of the Constitution for a writ of habeas corpus directing his release from detention contending that  i though an order of detention to prevent acts prejudicial to public order may be justifiable an order to prevent acts prejudicial to law and order would not be justified by the rule ii the order mentioned a notification which did not contain the necessary delegation iii the District Magis trate acted beyond his jurisdiction by considering the danger not only in his district but in the entire State and iv all the conditions mentioned in the rule must be cumulatively applied before the order of detention could be made
The respondent State raised a preliminary objectionthat the President of India had made an Order under article 3591 that the right of a person to move any court for the enforcement of the rights conferred by articles 21 and 22 shall remain suspended for the period during which the proclamation of emergency under article 352 was in force if such person had been deprived of any such rights under the Defence of India Act or any rule made thereunder and that therefore this Court was prevented from entertaining the petition
HELD  Per Full Court  i The petition was maintainable
Per Sarkar J  The order of the President does not form a bar to all applications for release from detention under the Act or the Rules
Where a person was detained in violation of the mandatory provisions of the Defence of India Act his right to move the Court was not suspended
Since the petitioner contended that the order of detention was not justified by the Act or Rules and was therefore against the provisions of the Act the petitioner was entitled to be heard
716 G 717 A B 710 Per Hidayatullah and Bachawat JJ  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 article 22 at variance with the Defence of India Act and the Rules are of no avail
But the deprivation must be in good faith under the Defence of India Act or any rule or order made thereunder
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 or mala fide he cannot move the Court to complain that the Act and the Rules under colour of which some action was taken do not warrant it
It follows therefore
that this Court acting under article 32 on a petition for the issue of a writ of habeas corpus must not allow breaches of the Defence of India Act or the Rules to go unquestioned as article 359 and the President s Order were not intended to condone an illegitimate enforcement of the Defence of India Act
731 B E F 733 B C Per Raghubar Dayal J  This Court can investigate whether the District Mazistrate exercised the power under r 30 honestly and bona fide or not that is whether he ordered detention on being satisfied as required by r 30
748 H Per Mudholkar J  Before an entry into the portals of this Court could be denied to a detenu he must be shown an order under r 301 of the Defence of India Rules made by a competent authority stating that it was satisfied that the detenu was likely to indulge in activities which would be prejudicial to one or more of the matters referred to in the rule
If the detenu contends that the order though it purports to be under r 301 was not competently made this Court has the duty to enquire into the matter
Upon an examination of the order if the Court finds that it was not competently made or was ambiguous it must exercise its power under article 32 entertain the petition thereunder and make an appropriate order
755 H 756 A B Makhan Singh vs State of Punjab 1964 4 SCR 797 followed
ii Per Sarkar Mdayatullah Mudholkar and Bachawat JJ
 The petitioner should be set at liberty
Per Sarkar J  The order detaining the petitioner 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
What was meant by maintenance of public order was the prevention of disorder of a grave nature a disorder which the authorities thought was necessary to prevent in view of the emergent situation created by external aggression whereas the expression maintenance of law and order may mean prevention of disorder of comparatively lesser gravity and of local significance only
718 B D E Courts are only entitled to look at the face of the order because the satisfaction which justifies the order under the rule is the subjective satisfaction of the detaining authority
If on its face an order of detention is in terms of the rule ordinarily a court is bound to stay its hands and uphold the order
When an order is on the face of it not in terms of the rule a court cannot enter into an investigation whether the order of detention was In fact in terms of the rule
So the State cannot be heard to say of prove that an order was in fact made to prevent acts prejudicial to public order though the order does not say so
It is not a case where the order is only evidence of the detention having been made under the rule
The order is conclusive as to the state of the mind of the person who made it and no evidence is admissible to prove that state of mind
Extraneous evidence such as the note made by the District Magistrate was not admissible lo prove that the rule had been complied with
718 G H 718 B D 720 G 722 B C 711 is not taking too technical a view but is a matter of substance
If a man can be deprived of his liberty under a rule by the simple process of the making of an order he can only be so deprived if the order is in terms of the rule
If for the purpose of justifying the detention such com pliance by itself is enough a non compliance must have a contrary effect A more reference in the detention order to the rule is not sufficient to show that by law and order what was meant was public order
719 F G 720 A C The order no doubt mentions another ground of detention namely prevention of acts prejudicial to public safety and in so far as it did so it was clearly within the rule
But the order has notwithstanding this to be held illegal though it mentioned a ground on which a legal order of detention could have been based because it could not be said in what manner and to what extent the valid and invalid grounds operated an the mind of the authority concerned and contributed to the creation of subjective satisfaction
722 E G 11 ShShibban Lal Saksena vs State of UP   followed
Per Hidayatullah and Bachawat JJ
 The satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face passed by a competent authority in good faith would be a complete answer to a petition for a writ of habeas corpus
But when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers there is need to pause and enquire
The enquiry then Is not with a view to investigate the sufficiency of the materials but into the officer s notions of his power
If the order passed by him showed that he thought his powers were more extensive than they actually were the order might fail to be a good order
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
When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred the action must comply not only with the substantive requirements of law but also with those forms which alone can indicate that the substance has been committed with
739 H 740 B C E 741 C F The District Magistrate acted to maintain law and order and his order could not be read differently even if there was an affidavit the other way
If he thought in terms of public order he should have said so in his order or explained how the error arose
A mere reference to his earlier note was not sufficient and the two expressions cannot be reconciled by raising an air of similitude between them
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
One has to imagine three concentric circles the largest representing law and order the next representing public order and the smallest representing security of State
An act may affect law and order  but not public order just as an act may affect public order but not security of the State
Therefore by using the expression maintenance of law and order the District Magesstrate was widening his own field of action and was adding a clause to the Defence of India Rules
740 E F H 746 B E 747 D E The order on its face shows two reasons but it was not certain that the District Magistrate was influenced by one consideration and not both because it was not oven to the Court to enquire into the material on which the District Magistrate acted or to examine the reason  to see whether his action fell within the other topic
namely
public safety
746 F G 712 Per Mudholkar J  The use of the expression maintenance of law and order in the impugned order makes it ambiguous on its face and therefore the order must be held to be had
No doubt the order also refers to public safety
But then the questions arise  What is it that weighed with the District Magistrate the apprehension regarding public safety or an apprehension regarding maintenance of law and order Was the apprehension entertained by the District Magistrate that the petitioner if left at large was likely to do something which will imperil the maintenance of public order generally or was it that he apprehended that the petitioner s activities may cause disturbances in a particular locality  His order which was the only material which could be considered gave no indication on those questions
The expression law and order does not find any place in the rule and is not synonymous with public order
Law and order is a comprehensive expression in which would be included not merely public order but matters such as public peace tranquility orderliness in a locality or a local area and perhaps other matters
756 H 757 A C D F Per Raghubar Dayal J dissenting  The District Magistrate made the impugned order on his being satisfied that it was necessary to do so with a view to prevent the petitioner from acting in a manner prejudicial to public safety and maintenance of public order
The impugned order was therefore valid and consequently the petitioner could not move this Court for the enforcement of his rights under articles 21 and 22 in view of the President s Order under article 3591
755 B C The detaining authority s 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 person for a purpose mentioned in r 30 though the purpose has been inaccurately stated in the detention order
The existence of satisfaction does not depend on what is stated in the order and can be established by the District Magistrate by his affidavit
His omission to refer to maintenance of public order does not mean that he was not so satisfied especially when his note refers to the petitioner being at large to be prejudicial to public safety and the maintenance of public order
The petitioner s affidavit and rejoinder show that the District Magistrate was satisfied of the necessity of detaining the petitioner to prevent him from acting in a manner prejudicial to the public order because of the setting of events that happened on that date
Maintenance of law and order may be an expression of wider import than public order but in the context in which it was used in the detention order and in view of its use generally it should be construed to mean maintenance of law and order in regard to maintenance of public tranquility
749 C D 750 C D 751 C F G Sodhi Shamsher Singh vs State of Pepsu AIR 1954 SC 276 referred to
Even if the expression maintenance of law and order in the impugned order be not construed as referring to maintenance of public order the impugned order cannot be said to be invalid in view of its being made with a double objective that is with the object of preventing the petitioner from acting prejudicially to the public safety and the maintenance of law and order
His satisfaction with respect to any of the purposes mentioned in r 301 which would justify his ordering the detention of a person is sufficient for the validity of the order
There is no room for considering that be might not have passed the order merely with one object in view the object being to prevent him from acting prejudicially to public safety
It is not a case where his satisfaction was based on two grounds one of which is irrelevant or non existent
There does not appear to be any reason why the District Magistrate would not have passed the order of 713 detention against the petitioner on the satisfaction that it was necessary to prevent him from acting prejudicially to public safety
752 H 753 B D 754 A Di iii Per Sarkar Hidayatullah Raghubar Dayal and Bachawat JJ
The delegation was valid
Per Sarkar J  In spite of the mistake in the order as to the Notification delegating the power evidence could be given to show that the delegation had in fact been made because the mistake did not vitiate the order
To admit such evidence would not be going behind the face of the order because what is necessary to appear on the face of the order is the satisfaction of the Authority of the necessity for detention for any of the reasons mentioned in r 301 b and not his authority to make the order
721 D F G Per Hidayatullah Raghubar Dayal and Bachawat JJ  There was only a clerical error in mentioning the wrong notification and being a venial fault did not vitiate the order of detention
Also section 402 does not require the imposition of any conditions but only permits it
737 F 738 A 741 G 748 D iv Per Hidayatullah Raghubar Dayal and Bachawat JJ
 There was nothing wrong in the District Magistrate taking a broad view of the petitioner s 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 order against him does not necessarily spell out extra territoriality but is really designed to assess properly the potentiality of danger which is the main object of the rule lo prevent
737 G H 748 D v Per Hidayatullah Raghubar Dayal Mudhilkar and Bachawat JJ
It is not necessary that the appropriate authority should entertain an apprehension that the person to be detained is likely to participate in every one of the activities referred to in the rule
D 756 F