No XIII of 1950
Application under article 32 1 of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the 
The material facts of the case and arguments of counsel are set out in detail in the judgments
The relevant provisions of the  are printed below
Short title extent and duration
This Act may be called the 
2 It extends to the whole of India   3 It shall cease to have effect on the 1st day of April 1951 as respects things done or omitted to be done before that date
2 Definitions
In this Act unless the context other wise requires a State Government means in relation to a Part C State the Chief Commissioner of the State and b detention order means an order made under Section 3 3
Power to make orders detaining certain persons 1 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 foreign power or the security of India or ii the security of the State or the maintenance of public order or iii the maintenance of supplies and services to the community or b if satisfied with respect to any person who is a foreigner within the meaning of the XXXI of 1946 that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do make an order directing that such person be detained
2 Any District Magistrate or Sub Divisional Magistrate or Presidency town the Commissioner of Police may if satisfied provided in sub clauses ii and iii of clause a of sub section 1 exercise the power conferred by the said sub section
3 When any order is made under this section by a Dis trict Magistrate Sub Divisional Magistrate or Commissioner of Police he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi ty for the order
Grounds of order of detention to be disclosed to persons affected by the order 1 When a person is de tained in pursuance of a detention order the authority making the order shall as soon as may be communicate to him the grounds on which the order his been made and shall afford him the earliest opportunity of making a representa tion against the order in a case where such order has been made by the Central Government to that Government and in a case where it has been made by a State Government or an officer subordinate thereto to the State Government
94 11
Confirmation of detention order
In any case where the Advisory Board has reported that there is in Rs opinion suffcient cause for the detention of the person concerned the Central Government or the State Government
as the case may be may confirm the detention order and continue the detention of the person concerned for  such period as it thinks fit
Duration of detention in certain cases 1 Any person detained in any of the following classes of cases or under my of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of his detention namely where such person has been detained wish a view to preventing him from acting in any manner prejudicial to a the defence of India relations of India with foreign powers or the security of India or b the security of a State or the maintenance of public order
   14
Disclosure of grounds of detention etc 1 No court shall except for the purpose of a prosecution for an offence punishable under sub section 9 allow any state ment to be made or any evidence to be given
before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order and notwithstanding anything contained in any other law no court shall be entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential
2 It shall be an offence punishable with imprisonment for term which may extend to one year or with fine or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government as the case may be any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section 1 Provided that nothing in this sub section shall apply to a disclosure made  to his legal adviser by a person who is the subject of a detention order
M K Nambiar section K Aiyar and VG Rao with him for the petitioner
K Rajah Aiyar Advocate General of Madras C R Pattabi Raman and R Ganapathi with him lot the State of Madras
MC Setalvad Attorney General for India Jindralal with him for the Union of India
95 1950
May 19
The following Judgments were delivered
KANIA C J This is a petition by the applicant under article 32 1 of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail
In the petition he has given various dates showing how he has been under detention since December 1947
Under the ordi nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside
While he was tires under detention under one of the orders of the Madras State Government on the 1st of March 1950 he was served with an order made under section 3 1 of the  IV of 1950
He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Con stitution
He has also challenged the validity of the order on the ground that it is issued mala fide
The burden of proving that allegation is on the applicant
Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds supplied to him for his detention and the question of mala fides of the order therefore cannot be gone into under this petition
The question of the validity of Act IV of 1950 was argued before us at great length
This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us
The Court is indebted to the learned counsel for the applicant and the Attorney General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution
In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution
Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96 Constitution either directly or through officers subordinate to him
The legislative powers of the Union are divided between the Parliament and Legislatures of the States
The ambit and limitations on their respective powers are found in article 246 read with article 245 Schedule VII Lists 12 and 3 of the Constitution
For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147
This follows the pat tern of the Government of India Act 1935 which was the previous Constitution of the Government of India
Unlike the American Constitution there is no article vesting the judicial power of the Union of India in the Supreme Court
The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice liberty and equality and to promote among them all frater nity
Part III of the Constitution is an important innova tion
It is headed Fundamental Rights
 In that Part the word State includes both the Government of the Union and the Government of the States
By article 13 it is expressly provided that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of this Part to the extent of such inconsistency are void
There fore all laws in operation in India on the day the Consti tution came into force unless otherwise saved to the extent they are inconsistent with this Chapter on Fundamen tal Rights become automatically void
Under article 13 2 provision is made for legislation after the Constitution comes into operation
It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven tion of this clause shall to the extent of the contraven tion be void
Therefore as regards future legislation also the Fundamental Rights in Part III have to be respected and unless otherwise saved by the provisions of the Consti tution they will be void to the extent they contravene the provisions of Part III
Under article 245 1 the legisla tive powers conferred under 97 article 246 are also made subject to the provisions of this Constitution which of course includes Part III dealing with the Fundamental Rights
The term law in article 13 is expressed to be wide enough to include Acts Ordinances Orders Bye laws Rules Regulations and even custom or usage having in the territory of India the force of law
The rest of this Part is divided in seven divisions
Right to Equality is found in articles 14 18 Eight to Freedom in articles 19 22 Right against Exploitation in articles 23 and 24 Right to Freedom of Religion in articles 25 28 Cultural and Educational Rights in articles 29 and 30 Right to Property in article 31 and Right to Constitu tional Remedies in articles 32 35
In this case we are directly concerned only with the articles under the caption Right to Freedom 19 22 and article 32 which gives a remedy to enforce the rights conferred by this Part
The rest of the articles may have to be referred to only to assist in the interpretation of the above mentioned arti cles
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive both of the Union and the States are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control
The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief mentioned in article 32 2 only in respect of the Funda mental Rights mentioned in Part III of the Constitution
The petitioner is detained under a preventive detention order made under Act IV of 1950 which has been passed by the Parliament of India
In the Seventh Schedule of the Constitution List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers
Entry 9 is in these terms preventive detention for reasons connected with Defence Foreign Affairs or the Security of India persons subjected to such detention List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98 powers
Entry 3 of that List is in these terms Preventive detention for reasons connected with the security of a State the maintenance of public order or the maintenance of supplies and services essential to the community persons subjected to such detention
 It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule
The contention of the peti tioner is that the impugned legislation abridges or in fringes the rights given by articles 19 21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 4 and 7 and in particular is an infringement of the provisions of article 22 5
It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof
Article 19 is for the protection of certain rights of freedom to citizens
It runs as follows  19
1 All citizens shall have the right a to free dom of speech and expression b to assemble peaceably and without arms c to form associations or unions d to move freely throughout the territory of India e to reside and settle in any part of the territory of India f to acquire hold and dispose of property and g to practise any profession or to carry on any occupation trade or business 2 Nothing in sub clause a of clause 1 shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relat ing to libel slander defamation contempt of court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State
3 Nothing in sub clause b of the said clause shall affect the operation of any existing law in so far as it imposts or prevent the State from making any law imposing in the interests of public order 99 reasonable restrictions on the exercise of the right con ferred by the said sub clause
4 Nothing in sub clause c of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of public order or morality reasonable restrictions on the exercise of the right conferred by the said sub clause
5 Nothing in sub clauses d e and f of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
6 Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restric tions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevent the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation trade or business
 Clause 2 specifies the limits up to which the abridge ment of the right contained in 19 1 a may be permitted
it is an exception
Similarly clause 3 sets out the limit of abridgement of the right in 19 1 b and clause 4 specifies such limits in respect of the right in 19 1 c
Clause 5 is in respect of the rights mentioned in 19 1 d e and f and clause 6 is in respect of the rights contained in 19 1 g
It cannot be disputed that the articles collected under the caption Right to Freedom have to be considered together to appreciate the extent of the Fundamental Rights
In the first place it is necessary to notice that 100 there is a distinction between rights given to citizens and persons
This is clear on a perusal of the provisions of article 19 on the one hand and articles 20 21 and 22 on the other
In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre scribed in the articles themselves permitting its curtail ment
The inclusion of article 13 1 and 2 in the Con stitution appears to be a matter of abundant caution
Even in their absence if any of the fundamental rights was infiringed by any legislative enactment the Court has always the power to declare the enactment to the extent it transgresses the limits invalid
The existence of article 13 1 and 2 in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself
As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 1 a b c d e and g have been infringed
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses b c d e and g
Although this argu ment is advanced in a case which deals with preventive detention if correct it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code
So considered the argument must clearly be rejected
In spite of the saving clauses 2to6 permitting abridge ment of the rights connected with each of them punitive detention under several sections of the Penal Code eg for theft cheating forgery and even ordinary assault will be illegal Unless such conclusion necessarily follows from the article it is obvious that such construction should be avoided
In my opinion such result is clearly not the outcome of the Constitution
The article has to be read without any pre conceived notions
So read it clearly means 101 that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses
If there is a legislation directly attempting to control a citizen s freedom of speech or expression or his right to assemble peaceably and without arms etc the question whether that legislation is saved by the relevant saving clause of article 19 will arise
If however the legisla tion is not directly in respect of any of these subjects but as a result of the operation of other legislation for instance for punitive or preventive detention his right under any of these subclauses is abridged the question of the application of article 19 does not arise
The true approach is only to consider the directness of the legisla tion and not what will be the result of the detention other wise valid on the mode of the detenue s life
On that short ground in my opinion this argument about the in fringement of the rights mentioned in article 19 1 gener ally must fail
Any other construction put on the article it seems to me
will be unreasonable
It was next urged that while this interpretation may meet the contention in respect of rights under article 19 1 a b c e and g the right given by article 19 1 d is left untouched
That sub clause expressly gives the right to move freely throughout the territory of India
 It was argued that by the confinement of the peti tioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the im pugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Sched uled Tribe under article 19 5
The Court is thus en joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public
Article 14 of the Constitution gives the right to equality in these terms The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
 102 It was argued that the words within the territory of India are unnecessary in that article because the Parlia ment is supreme to make laws operative only within the territory of India
Without those words also the article will bear the same meaning
Similarly it was urged that the words territory of India in article 19 1 d may be treated as superfluous and preventive detention would thus be an abridgement of the right to move freely
In my opin ion this rule of construction itself is faulty
Because certain words may be considered superfluous assuming them to be
so in article 14 for the present discussion it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution
On the contrary in my opinion reading sub clause d as a whole the words territory of India are very important
What is sought to be protected by that sub clause is the right to freedom of movement ie without restriction throughout the terri tory of India
Read with their natural grammatical mean ing the sub clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause 5 of that Article
Sub clause d has nothing to do with detention preventive or punitive
The Constitution men tions a right to freedom of movement throughout the territo ry of India Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute particularly a Constitution it is improper
to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning
This position is made quite clear when clause 5 is read along with this sub clause
It permits the imposition of reasona ble
restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe
It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell
Such restriction may be appropriate to prevent a person from going from one Province to another or 103 one area to another having regard to local conditions prevailing in particular areas
The point however is made abundantly clear by the alternative viz for the protec tion of the interests of any Scheduled Tribe
What protec tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell  On the other hand pre venting the movement of a person from one part of the terri tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country
Scheduled Tribes have certain rights privileges and also disabili ties
They have their own civilization customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions
The legis lative history of India shows that Scheduled Tribes have been given a separate place on these grounds
Reading article 19 as a whole therefore it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object
I may point out that the acceptance of the petitioner s argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right
Even under clause 5 the Court is permitted to apply the test of reasonable ness of the restrictions or limits not generally but only to the extent they are either in the interests of the gener al public eg in case of an epidemic riot etc or for the protection of the interests of any Scheduled Tribe
In my opinion this is not the intention of the Constitution
Therefore the contention urged in respect of article 19 fails
It was argued that article 19 and article 21 should be read together as implementing each other
Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure 104 established by law
Even so on a true construction of article 19 it seems to me that both preventive and punitive detention are outside the scope of article 19
In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning
It is the first article under the caption Right to Freedom 
 It gives the rights mentioned in 19 1 a to g to all citizens of India
These rights read by them selves and apart from the controls found in clauses 2 to 6 of the same article specify the different general rights which a free citizen in a democratic country ordi narily has
Having specified those rights each of them is considered separately from the point of view of a similar right in the other citizens and also after taking into consideration the principle that individual liberty must give way to the extent it is necessary when the good or safety of the people generally is concerned
Thus the right to freedom of speech and expression is given by 19 1 a
But clause 2 provides that such right shall not prevent the operation of a law which relates to libel slander defamation contempt of Court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State
Clause 2 thus only emphasizes that while the individual citizen has a free right of speech or expression he cannot be permit ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State
Thus all laws of libel slander contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression
Simi larly that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State
A similar analysis of clauses f3 and 4 shows similar restrictions imposed on similar grounds
In the same way clause 5 also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India the right to reside and settle in any part of the 105 territory of India or the right to acquire hold and dispose of property being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter est of the general  public
The Constitution further pro vides by the same clause that similar reasonable restric tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe
This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public the Constitution did not provide for the imposi tion of such restriction to protect the interests of a smaller group of people only
Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric tions in the interest of the rest of the citizens
Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo ry of India is an entirely different concept from the right to personal liberty contemplated by article 21
Person al liberty covers many more rights in one sense and has a restricted meaning in another sense
For instance while the right to move or reside may be covered by the expression  personal liberty the right to freedom of speech men tioned in article 19 1 a or the right to acquire hold or dispose of property mentioned in 19 1 f cannot be considered a part of the personal liberty of a citizen
They form part of the liberty of a citizen but the limita tion imposed by the word personalleads me to believe that those rights are not covered by the expression personal liberty
So read there is no conflict between articles 19 and 21
The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles
As already mentioned in respect of each of the rights specified in sub clauses of article 19 1 specific limitations in respect of each is provided while the expression personal 106 liberty in article 21 is generally controlled by the gener al expression procedure established by law
 The Constitu tion in article 19 and also in other articles in Part III thus attempts to strike a balance between individ ual liberty and the general interest of the society
The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individu als
Deprivation total loss of personal liberty which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and sever al such rights sought to be protected by the expression personal liberty in article 21 is quite different from restriction which is only a partial control of the right to move freely which is relatively a minor right of a citizen as safeguarded by article 19 1 d
Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India
This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read
Therefore article 19 5 cannot apply to a substantive law depriving a citizen of personal liberty
I am unable to accept the contention that the word deprivation includes within its scope restriction when interpreting article 21
Article 22 envisages the law of preventive detention
So does article 946 read with Schedule Seven List I Entry 9 and List III Entry 3
Therefore when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla tion  permitting preventive detention as in conflict with the rights mentioned in article 19 1
Article 19 1 does not purport to cover all aspects of liberty or of personal liberty
In that article only certain phases of liberty are dealt with Personal liberty would primarily mean liberty of the physical body
The rights given under article 19 1 do not directly come under that description
They are rights which accompany the freedom or liberty of the person
By their very 107 nature they are freedoms of a person assumed to be in full possession of his personal liberty
If article 19 is considered to be the only article safeguarding personal liberty several well recognised rights as for instance the right to eat or drink the right to work play swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution
I do not think that is the intention
It seems to me improper to read article 19 as dealing with the same subject as article 21
Article 19 gives the rights specified therein only to the citizens of India while arti cle 21 is applicable to all persons
The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India
Moreover the protection given by article 21 is very general
It is of law whatever that expression is interpreted to mean
The legislative restrictions on the law making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19
In my opinion there fore article should be read as a separate complete article
Article 21 which is also in Part III under the caption Right to Freedom runs as follows  No person shall be deprived of his life or personal liberty except according to procedure established by law
 This article has been strongly relied upon by the peti tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person
It was argued that under the Constitution of the United States of America the corre sponding provision is found in the 5th and 14th Amendments where the provision inter alia is that no person shall be deprived of his life or liberty or property except by due process of law
 It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India except that in the United States due process of law has been construed by its Supreme Court to cover both 108 substantive and procedural law while in India only the protection of procedural law is guaranteed
It was contend ed that the omission of the word due made no difference to the interpretation of the words in article 21
The word established  was not equivalent to prescribed
It had a wider meaning
The word law did not mean enacted law because that will be no legislative protection at all
If so construed any Act passed by the Parliament or the State Legislature which was otherwise within its legislative power can destroy or abridge this right
On the same line of reasoning it was argued that if that was the inten tion there was no necessity to put this as a fundamental right in Part III at all
As to the meaning of the word law it was argued that it meant principles of natural justice
It meant jus ie law in the abstract sense of the principles of natural justice as mentioned in standard works of Jurisprudence and not lex ie enact ed law
Against the contention that such construction will leave the meaning vague it was argued that four principles of natural justice recognised in all civilized countries were covered in any event by the word law
They are 1 An objective test ie a certain definite and ascer tainable rule of human conduct for the violation of which one can be detained 2 Notice of the grounds of such detention 3 An impartial tribunal administrative judi cial or advisory to decide whether the detention is justi fied and 4 Orderly course of procedure including an opportunity to be heard orally not merely by making a written representation with a right to lead evidence and call witnesses
In my opinion this line of approach is not proper and indeed is misleading
As regards the American Constitution its general structure is noticed in these words in The Government of the United States by Munro 5th Edition at page 53 The architects of 1787 built only the basement
Their descendants have kept adding walls and windows wings and gables pillars and porches to make a rambling structure which is not yet finished
Or to change the metaphor it has a fabric which to use the words of 109 James Russell Lowell is still being woven on the roaring loom of time 
That is what the framers of the original Constitution intended it to be
Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time
They sought merely to pro vide a starting point
 The same aspect is emphasized in Professor Willis s book on Constitutional Law and Cooley s Constitutional Limitations
In contrast to the American Constitution the Indian Constitution is a very detailed one
The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla tures
The same feature is noticeable in the case of the judiciary finance trade commerce and services
It is thus quite detailed and the whole of it has to be read with the same sanctity without giving undue weight to Part III or article 246 except to the extent one is legitimately and clearly limited by the other
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage
The first is that in US A Constitution the word liberty is used simpliciter while in India it is restricted to personal liberty
2 In USA Constitution the same protection is given to proper ty while in India the fundamental right in respect of property is contained in article 31
3 The word due is omitted altogether and the expression due process of law is not used deliberately
4 The word established is used and is limited to Procedure in Our article 21
The whole argument of the petitioner is rounded on the meaning of the word law given to it by the Supreme Court of America
It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the USA and how they came to enlarge or abridge the meaning of law in the expression due process of law
Without going into details I think there is no justification to adopt the meaning of the word law as interpreted by the Supreme Court of USA in the expression due 110 process of law merely because the word law is used in article 21
The discussion of the meaning of due process of law found in Willis on Constitutional Law and in Coo ley s Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif ferent circumstances by the Supreme Court of USA so much so that the conclusion reached by these authors is that the expression
means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office
It also shows how the meaning of the expression was widened or abridged in certain decades
Moreover to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play
That doctrine shortly put is that legislation meant for the good of the people generally and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large has not to be tested by the touchstone of the due process of law formula
Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause
The report may be read not to control the meaning of the article but may be seen in case of ambiguity
In The Municipal Council of Sydney vs The Commonwealth1 it was thought that individu al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution
The same opinion was expressed in United States vs Wong Kim Ark2
The result appears to be that while it is not proper to take into consideration the indi vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause when a ques tion is raised whether a certain phrase or expression was up for consideration at all or not a reference to the debates may be  permitted
In the present case the debates were referred to to show that the expression due process of law was known to exist in the American Constitution 1 2 169 US 649 at 699
111 and after a discussion was not adopted by the Constituent Assembly in our Constitution
In Administrator General of Bengal vs Premlal Mullick1 a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section
The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved
See Craies  Statute Law 4th Edition page 122 Maxwell on Interpretation of Statutes 9th Editionpp
28 29 and Crawford on Statutory Construction 1940 Edition p 379 article 214
A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression due process of law but they deliberately dropped the use of that expression from our Constitution
No extrinsic aid is needed to interpret the words of article 21 which in my opinion are not ambiguous
Normally read and without thinking of other Constitutions the expression procedure established by law must mean procedure prescribed by the law of the State
If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri can Constitution there was nothing to prevent the Assembly from adopting the phrase or if they wanted to limit the same to procedure only to adopt that expression with only the word procedural prefixed to law
 However the correct question is what is the right given by article 21  The only right is that no person shall be deprived of his life or liberty except according to procedure established by law
One may like that right to cover a larger area but to give such a right is not the function of the Court it is the function of the Constitution
To read the word law as meaning rules of natural justice will land one in 1 1895LR 221
A 107
15 15 112 difficulties because the rules of natural justice as re gards procedure are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard
This is particularly so when in omitting to adopt due process of law it was considered that the expression procedure established by law made the standard specific
It can not be specific except by reading the expression as meaning procedure prescribed by the legislature
The word law as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice
If so there appears no reason why in this article it should receive this peculiar meaning
Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows  No person shall be deprived of his property save by authority of law
 It is obvious that in that clause law must mean enact ed law
The object of dealing with property under a differ ent article appears more to provide the exceptions found in article 31 2 to 6 rather than to give the word law a different meaning than the one given in article 21
The world established according to the Oxford Dictionary means to fix settle institute or ordain by enactment or agree ment
 The word established itself suggests an agency which fixes the limits
According to the dictionary this agency can be either the legislature or an agreement between the parties
There is therefore no justification to give the meaning of jus to law in article 21
The phrase procedure established by law seems to be borrowed from article 31 of the Japanese Constitution
But other articles of that Constitution which expressly pre serve other personal liberties in different clauses have to be read together to determine the meaning of law in the expression procedure established by law
 These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language
It is not shown that the word law means jus in the Japanese Constitution
In the Japanese Constitution these 113 rights claimed under the rules of natural justice are not given by the interpretation of the words procedure established by law in their article 31
The word due in the expression due process of law in the American Consti tution is interpreted to mean just according to the opinion of the Supreme Court of USA
That word imparts jurisdiction to the Courts to pronounce what is due from otherwise according to law
The deliberate omission of the word due from article 21 lends strength to the conten tion that the justiciable aspect of law ie to consider whether it is reasonable or not by the Court does not form part of the Indian Constitution
The omission of the word due the limitation imposed by the word procedure and the insertion of the word established thus brings out more clearly the idea of legislative prescription in the expres sion used in article 21
By adopting the phrase procedure established by law the Constitution gave the legislature the final word to determine the law
Our attention was drawn to The King vs The Military Governor of the Hair Park Camp   where articles 6 and 70 of the Irish Constitution are discussed
Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except in accord ance with law 
In article 70 it is provided that no one shall be tried save in due course of law and extraor dinary Courts were not permitted to be established except the Military Courts to try military offences
The expres sion in accordance with law was interpreted to mean not rules of natural justice but as the law in force at the time
The Irish Court gave the expression due course of law the meaning given to it according to the English law and not the American law
It was observed by Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria C that in accordance with British Jurispru dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice
1 1924 2 Irish Reports KB 104
2 1931 AC 62 at 670
114 In The King vs The Secretary of State for Home Affairs1 Scrutton LJ
observed A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction
 It seems very arguable that in the whole set up of Part III of our Constitution these principles only remain guaranteed by article 21
A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention
In this
connection it may be noticed that the articles in Part III deal with different and separate rights
Under the caption Right to Freedom articles 19 22 are grouped but each with a separate marginal note
It is obvious that article 22 1 and 2 prescribe limita tions on the right given by article 21
If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 1 and 2 although they infringe the personal liberty of the individual will be legal because that becomes the established legal proce dure in respect of arrest and detention
Article 22 is for protection against arrest and detention in certain cases and runs as follows  22
1 No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
2 Every person who is arrested and detained in custo dy shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
3 Nothing in clauses 1 and 2 shall applya to any person who for the time being is an enemy alien or 1 at 382
115 b to any person who is arrested or detained under any law providing for preventive detention
4 No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless a an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause b of clause 17 or b such person is detained in accordance with the provisions of any law made by Parliament under subclauses a and b of clause 7
5 When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
7 Parliament may by law prescribe a the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub clause a of clause 4
 The learned Attorney General contended that the subject of preventive detention does not fall under 116 article 21 at all and is covered wholly by article 22
According to him article 22 is a complete code
I am unable to accept that contention
It is obvious that in respect of arrest and detention article 22 1 and 2 provide safeguards
These safeguards are excluded in the case of preventive detention by article 22 3 but safe guards in connection with such detention are provided by clauses 4 to 7 of the same article
It is therefore clear that article 21 has to be read as supplemented by article 22
Reading in that way the proper mode of construc tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed otherwise article 21 will apply
But if certain procedural safeguards are expressly stated as not required or specific rules on certain points of procedure are prescribed it seems im proper to interpret these points as not covered by article 22 and left open for consideration under article 21
To the extent the points are dealt with and included or excluded article 22 is a complete code
On the points of procedure which expressly or by necessary implication are not dealt with by article 22 the operation of article 21 will remain unaffected
It is thus necessary first to look at article 22 4 to 7 and next at the provisions 0 the impugned Act to determine if the Act or any of its provi sions are ultra vires
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention
much less laying down limitations on such right of detention in normal timeS ie without a declaration of emergency
Preventive deten tion in normal times
ie without the existence of an emergency like war is recognised as a normal topic of legislation in List I Entry 9 and List III Entry 3 of the Seventh Schedule
Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of pre ventive detention in normal times
The provisions of article 22 4 to 7 by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 7 the power of the Parliament to deprive a person of a right to have his case considered by an advisory board
Part III and
117 article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted
Parliament could have made a law without any safeguard or any procedure for preventive detention
Such an autocratic supremacy of the legislature is certainly cut down by article 21
There fore if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provi sions of Part III or article 22 4 to 7 the must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act
Article 22 4 opens with a double negative
Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain a provision establishing an advisory board consisting of persons with the qualifications mentioned in sub clause a and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention
This clause if it stood by itself and without the remaining provisions of article 22 will apply both to the Parliament and the State Legislatures
The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention ie detention beyond the period of three months still the detention is not to be permitted beyond the maximum period if any prescribed by Parliament under article 22 7 b
Again the whole of this sub clause is made inoperative by article 22 4 b in respect of an Act of preventive detention passed by Parlia ment under clauses 7 a and b
Inasmuch as the im pugned Act is an Act of the Parliament purported to be so made clause 22 4 has no operation and may for the present discussion be kept aside
Article 22 prescribes that when any person under a preventive detention law is detained the authority making the order shall as soon as may be commu nicate to such person the grounds on which 
the order has been made and shall afford him the 118 earliest opportunity of making a representation against the order
This clause is of general operation in respect of every detention order made under any law permitting deten tion
Article 22 6 permits the authority making the order to withhold disclosure of facts which such authority consid ers against the public interest to disclose
It may be noticed that this clause only permits the non disclosure of facts and reading clauses 5 and 6 together a distinc tion is drawn between facts and grounds of detention
Article 22 4 and 7 deal not with the period of detention only but with other requirements in the case of preventive detention also
They provide for the establishment of an advisory board and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen tation
Reading article 22 clauses 4 and 7 together it appears to be implied that preventive detention for less than three months without an advisory board is permitted under the Chapter on Fundamental Rights provided such legislation is within the legislative competence of the Parliament or the State Legislature as the case may be
Article 22 5 permits the detained person to make a representation
The Constitution is silent as to the person to whom it has to be made or how it has to be dealt with
But that is the procedure laid down by the Constitution
It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid
Silence on these points does not make the impugned Act in contravention of the Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention
The contention that the representation should be to an outside body has no support in law
Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body
After such representation was made another advisory board had to consider it but it was not necessary to make the represen tation itself to a third party
Article 22 4 and 7 permit the non establishment of an advisory board expressly in a parliamentary legislation 119 providing for preventive detention beyond three months
If so how can it be urged that the nonestablishment of an advisory
board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament The important clause to be considered is article 22 7
Sub clause a is important for this case
In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights thus permits detention beyond a period of three months and ex cludes the necessity of consulting an advisory board if the opening words of the sub clause are complied with
Sub clause b is permissive
It is not obligatory on the Parliament to prescribe any maximum period
It was argued that this gives the Parliament a right to allow a person to be detained indefinitely
If that construction is correct it springs out of the words of sub clause 7 itself and the Court cannot help in the matter
Subclause c permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub clause a of clause 4
I am unable to accept the contention that article 22 4 a is the rule and article 22 7 the exception
I read them as two alternatives provided by the Constitution for making laws on preventive detention
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII List I Entry 9 and List III Entry 3 it is thus clear that the Parliament is empowered to enact a law of preventive detention a for reasons connected with defence b for reasons connected with foreign affairs c for reasons connected with the security of India and under List III d for reasons connected with the security of a State e for reasons connected with the maintenance of public order or f for reasons connect ed with the maintenance of supplies and services essential to the community
Counsel for the petitioner has challenged the validity of several provisions of the Act
In respect of the construction of a Constitution Lord Wright in James vs The Commonwealth of Australia1 1 1936 A 0 578 at 614
16 120 observed that a Constitution must not be construed in any narrow and pedantic sense Mr Justice Higgins in Attorney General of New South Wales vs Brewery Employees  Union 1 observed Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting to remember that it is a Constitution a mechanism under which laws are to be made and not a mere Act which declares what the law is to be In In re The Central Provinces and Berar Act XIV of 1938   Sir Maurice Gwyer CJ after adopting these observations said especially is this true of a Federal Constitution with its nice balance of jurisdictions
I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it but I do not imply by this that they are free to stretch or pervert the lan guage of the enactment in the interest of any legal or con stitutional theory or even for the purpose of supplying omissions or of correcting supposed errors
 There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words
Where the funda mental law has not limited either in terms or by necessary implication the general powers conferred upon the Legisla ture we cannot declare a limitation under the notion of hav ing discovered something in the spirit of the Constitution which is not even mentioned in the instrument
It is diffi cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition except so far as the express words of a written Constitution give that authority
It is also stated if the words be positive and without ambiguity there is no authority for a Court to vacate or repeal a Statute on that ground alone
But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and 1 at 611 12
2 at 37
121 paramount law settled by the deliberate wisdom of the nation that one can find a safe and
solid ground for the authority of Courts of justice to declare void any legislative enact ment
Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security
or the protection of private rights
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi ty
It was urged that the satisfaction must be of the legislative body
This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts
It is unnecessary to refer to all those cases
A reading of the various speeches in Liversidge vs Anderson clearly negatives this contention
Section 3 of the impugned Act is no delegation of legislative power to make laws
It only confers discretion on the officer to enforce the law made by the legislature
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with
It is clear that no such objective standard of conduct can be pre scribed except as laying down conduct tending to achieve or to avoid a particular object
For preventive detention action must be taken on good suspicion
It is a subjective test based on the cumulative effect of different actions perhaps spread over a considerable period
As observed by Lord Finlay in The King vs Halliday 2 a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person
The contention is urged in respect of preventive detention and not punitive detention
Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do and an omission to do or not to do will result in the State 1 2  at 269
122 considering him guilty according to the penal enactment
When it comes however to preventive detention the very purpose is to prevent the individual not merely from acting in a particular way but as the sub heads summarized above show from achieving a particular object
It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object
It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is
a sufficient standard to prevent the legislation being vague
In my opinion therefore the argument of the petitioner against section 3 of the impugned Act fails
It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires
The answer is found in article 22 7 b
A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses a and b of that section
It appears therefore that in respect of the rest of the clauses mentioned in section 3 1athe detention is not contem plated to be for a period longer than three months and in such cases a reference to the advisory board under section 9 is contemplated
Section 7 of the Act which is next challenged runs on the same lines as article 22 5 and
6 and in my opinion infringes no provision of the Constitution
It was argued that this gave only the right of making a representation without being heard orally or without affording an opportu nity to lead evidence and therefore was not an orderly course of procedure as required by the rules of natural justice
The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation
The Act has thus complied with the requirements of article 22 s
That clause which prescribes what procedure has to be followed as a matter of fundamental right is silent about the person detained having a right to be heard 123 orally or by a lawyer
The Constituent Assembly had before them the provisions of clause 1 of the same article
The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally
If so I do not read the clause as guarantee ing such right under article 22 5
An orderly course of procedure is not limited to procedure which has been sanc tioned by settled usage
New forms of procedure are as much held even by the Supreme Court of America due process of law as old forms provided they give a person a fair opportunity to present his case
It was contended that the right to make a representation in article 22 5 must carry with it a right to be heard by an independent tribunal otherwise the making of a representation has no substance because it is not an effective remedy
I am unable to read clause 5 of article 22 as giving a fundamental right to be heard by an independent tribunal
The Constitution deliberately stops at giving the right of representation
This is natural because under article 22 7 in terms the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted
To consider the right to make a representation as necessarily including a right to be heard by an independent judicial administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 7
Even according to the Supreme Court of USA a right to a judicial trial is not absolute
In the United States vs Ju Toy 1 a question arose about the exclusion from entry into the States of a Chinese who claimed to be a citizen of the United States
At page 263 the majority judgment con tains the following passage   If for the purpose of argument we assume that the Fifth Amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty we nevertheless are of opinion that with regard to him due process of law does not require judicial trial That is the result of the cases which we have cited and the almost necessary result of the 1 198 US 253 at 263
124 power of the Congress to pass exclusion laws
That the decision may be entrusted to an executive officer and that his decision is due process of law was affirmed and ex plained in several cases
It is unnecessary to repeat the often quoted remarks of Mr Justice Curtis speaking for the whole Court in Den Exden Murray vs Hoboken Land and Im provement Company 1 to
show that the requirement of a judicial trial does not prevail in every case
 Again I am not prepared to accept the  contention that a right to be heard orally is an essential right of proce dure even according to the rules of natural justice
The right to make a defence may be admitted but there is nothing to support the contention that an oral interview is compulsory
In the Local Government Board vs Arlidge 2 the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court contending that the order was invalid because 1 the report of the Inspector had been treated as a confi dential document and had not been disclosed to the respond ent and 2 because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided
The Board rejected the application
Both the points were urged before the House of Lords on appeal
Viscount Haldane LC in his speech rejected the contention about the necessity of an oral hearing by observing But it does not follow that the procedure of every tribunal must bethe same
In the case of a Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform
But what that procedure is to be in detail must depend on the nature of a tribunal
 In rejecting the contention about the disclosure of the report of the Inspector the Lord Chancellor stated It might or might not have been useful to disclose this report but I do not think that the Board was bound to do so
any more than it would have been bound to disclose all the minutes made on the papers in the office before 1 18 HOW 272 at 280
2 125 a decision was come to 
What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at the begin ning by setting up the test of the procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education vs Rice 1
I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had
 In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws legislates against the well recognised principles of natural justice accepted as such in all civilized countries
The same view is accepted in the United States in Federal Communications Commission vs WJR The Goodwill Station 2
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive deten tion
Article 22 6 permits the non disclosure of facts
That is one of the clauses of the Constitution dealing with fundamental rights
If even the non disclosure of facts is permitted I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid
Section 10 3 was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right
It must be noticed that article 22 1 which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 3 in the case of legislation dealing with preventive detention
Moreover
the Parliament is expressly given power under article 22 7 c to lay down the procedure in an inquiry by an advisory board
This is also a part of article 22 itself
If so how can the omission to give a right to audience be considered against the constitutional rights  It was pointed out that section 10 3 prevents even the disclosure of a 1 2  at 276
126 portion of the report and opinion of the advisory board
It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions  This argument was similarly advanced in Local Government Board vs Arlidge 1 and rejected as mentioned above
In my opinion the answer is in the provision found in article 22 7 c of the Constitution of India
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern ment thought fit
This may mean an indefinite period
In my opinion this argument has nos substance because the Act has to be read as a whole
 The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound
Again by virtue of article 22 7b the Parliament is not obliged to fix the maximum term of such detention
It has not so fixed it except under section 12 and therefore it cannot be stated that section 11 is in contravention of article 22 7
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 7
It is argued that article 22 7 permits preventive detention beyond three months when the Parliament pre scribes the circumstances in which and the class or class es of cases in which a person may be detained
It was argued that both these conditions must be fulfilled
In my opinion this argument is unsound because the words used in article 22 7 themselves are against such interpretation
The use of the word which twice in the first part of the sub clause read with the comma put after each shows that the legislature wanted these to be read as disjunctive and not conjunctive
Such argument might have been possible though not necessarily accepted if  the article in the Constitution was the circumstances
and the class or class es of cases in which  I have
no doubt that by the clause as worded the legislature 1 127 intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which or the class or classes of cases in which a person is suspected or apprehended to be doing the objectionable things mentioned in the section
This contention therefore fails
It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention without obtaining the opinion of an advisory board with a view to prevent him from acting in any manner prejudicial to a the defence of India rela tions of India with foreign powers or the security of India or bthe security of a State or the maintenance of public order
It must be noticed that the contingency provided in section 3 1 a iii viz the maintenance of supplies and services essential to the community is omitted in sec tion 12
Relying on the wording of these two sub sections in section 12 it was argued that in the impugned Act the wording of Schedule VII List I Entry 9 and List III Entry 3 except the last part are only copied
This did not comply with the requirement to specify either the circum stances or the class or classes of cases as is necessary to be done under article 22 7 of the Constitution
Circum stances ordinarily mean events or situation extraneous to the actions of the individual concerned while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea
Determinable may be according to the nature of the object also
It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided
The argument advanced on behalf of the petitioner on this point does not  appeal to me because it assumes that the words of Schedule VII List I Entry 9 and List III Entry 3 are never capable of being considered as circum stances or classes of cases
In my opinion that assumption is not justified particularly when we have to take into consideration cases of preventive 17 128 detention and not of conviction and punitive detention
Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases
The classification of cases having regard to an object may itself amount to a description of the circumstances
It is not disputed that each of the entries in the Legislative Lists in the Seventh Schedule has a specific connotation well understood and ascertainable in law
If so there appears no reason why the same expression when used in section 12 1 a and b of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases
This argument therefore must be rejected
Section 132 was attacked on the ground that even if a detention order was revoked another detention order under section 3 might be made against the same person on the same grounds
This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground
There is nothing in the Chapter on Fundamental Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation permitting preventive detention
Article 20 2 may be read as a contrast on this point
Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down
It is conceded that no notice before detention can be claimed by the very nature of such detention
The argument that after detention intimation of the grounds should be given has been recognised in article 22 5 and incorporated in the impugned Act
As regards an impartial tribunal article 22 and 7 read together give the Parliament ample discretion
When in specified circumstances and classes of cases the preventive detention exceeds three months the absence of an advisory board is expressly per mitted 129 by article 22 7
Under article 22 4 it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months
As regards an opportunity to be heard there is no absolute natural right recognised in respect of oral representation
It has been held to depend on the nature of the tribunal
The right to make a representation is affirmed by the Constitution in article 22 5 and finds a place in the impugned Act
The right to an orderly course of procedure to the extent it is guaranteed by article 22 4 read with article 22 7 c and by article 22 7 a and b has also been thus provided in the Act
It seems to me therefore that the petitioner s contentions even on these points fail
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even in fringed the right given by article 22 5 of the Constitu tion
It runs as follows 14
1 No Court shall except for the purposes of a prosecution for an offence punishable under subsection 2 allow any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order and notwithstanding anything contained in any other law no Court shall be entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential
2 It shall be an offence punishable with imprisonment for a term which may extend to one year or with fine or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government as the case may be any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section 1 130 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order
 By that section the Court is prevented except for the purpose of punishment for such disclosure from being in formed either by a statement or by leading evidence of the substance of the grounds conveyed to the detained person under section 7 on which the order was made or of any representation made by him against such order
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the produc tion of the proceedings or report of theadvisory board which may be declared confidential
It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not
I do not mean whether the grounds are suffi cient or not
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases men tioned in section 12 1 a or b
In Machindar Shivaji Mahar vs The King 1 the Federal Court
held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view
The provisions of article 22 5 do not exclude that right of the Court
Section 14 of the impugned Act appears to be a drastic provision
which re quires considerable support to sustain it in a preventive detention Act
The learned Attorney General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations and that it was a rule of evidence only which the Parliament could prescribe
I do not agree
This argument is clearly not sustainable on the words of article 22 clauses 5 and 6
The Government has the right under article 22 6not to disclose facts which it considers undesirable to disclose in the public interest
It does not permit the Government to refrain from disclosing grounds which fall under clause 5
1 131 Therefore it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest as a rule of evidence
Moreover the position is made clear by the words of article 22 5
It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made
It is there fore essential that the grounds must be connected with the order of preventive detention
If they are not so connected the requirements of article 22 5 are not complied with and the detention order will be invalid
Therefore it is open to a detained person to contend before a Court that the grounds on which the order  has been made have no connection at all with the order or have no connec tion with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12
To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him
For instance a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways
For the validity of the detention order it is necessary that the grounds should be those on which the order has been made
If the detained person is not in a position to put before the Court this paper the Court will be prevented from considering whether the requirements of article 22 5 are complied with and that is a right which is guaranteed to every person
It seems to me therefore that the provisions of section 14 abridge the right given under article 22 5 and are there fore ultra vires
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act
The impugned Act minus this section can remain unaffected
The omission of this section will not change the nature or the structure or the object of the legislation
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act
In my opinion therefore Act IV of 1950 except section 14 is not ultra vires
It does not infringe any 132 provisions of Part III of the Constitution and the con tention of the applicant against the validity of that Act except to the extent of section 14 fails
The petition therefore fails and is dismissed
FAZL ALI J
The question to be decided in this case is whether the Act IV of 1950 is wholly or in part invalid and whether the peti tioner who has been detained under that Act is entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal
The question being a pure question of law can he decided without referring to a long chain of facts which are narrated in the petitioner s application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act
The Act which is impugned was enacted by the Parliament on the 26th February 1950 and will cease to have effect on the 1st April 1951 save as respects
things done or omit ted to be done before that date
The main provisions of the Act are set out in sections 7 8 9 1011 12 and 14
Section a 1 provides that 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 the maintenance of supplies and services essential to the community or b if satisfied with respect to any person who is
a foreigner within the meaning of the XXXI of 1946 that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India 133 it is necessary so to do make an order directing that such person be detained
 Sub sections 2 and 3 of this section empower a District Magistrate Sub Divisional Magistrate or the Com missioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub section 1 but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order
Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate to the person detained the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order in a case where such order has been made by the Central Government to that Government and in a case where it has been made by a State Government or an officer subor dinate thereto to the State Government
Section 8 provides that the Central Government and each State Government shall whenever necessary constitute one or more advisory boards for the purposes of the Act and state the qualifications of persons of which the board should consist
Section 9 pro vides that when a detention order has been made with a view to preventing a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who is a foreigner within the meaning of the with a view to regulating his continued presence in India or making arrangements for his expulsion from India the grounds on which the order has been made and the representation if any
of the person detained shall within six weeks from the date of detention be placed before an advisory regard
It will be noticed that this section does not provide that the cases of persons who are detained under section 3 1 a i and ii will also be placed before the advisory board
Section 10 lays down the 134 procedure to be followed by
the advisory board and section 11 provides that in any case where the advisory board has reported that there is sufficient cause for the detention of the person concerned the detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government as the case may be thinks fit
Section 12
which is a very important section as we shall presently see runs as follows  12 1 Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceed ing one year from the date of his detention namely where such person has been detained with a view to preventing him from acting in any manner prejudicial to a the defence of India relations of India with foreign powers or the security of India or b the security of a State or the maintenance of public order
2 The case of every person detained under a detention order to which the provisions of sub section 1 apply shall within a period of six months from the date of his detention be reviewed where the order was made by the Central Government or a State Government by such Govern ment and where the order was made by any officer specified in sub section 2 of section 3 by the State Government to which such officer is subordinate in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Cen tral Government or the State Government as the case may be
 Section 14 which is also a material section for the purpose of this case is to the following effect  1 No Court shall except for the purposes of  a prosecution for an offence punishable under subsection 2 allow any statement to be made or any 135 evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order and not withstanding anything contained in any other law no Court shall be entitled to require any public officer to produce before it or to disclose the substance of any such commu nication or representation made or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential
2 It shall be an offence punishable with imprisonment for a term which may extend to one year or with fine or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government as the case may be any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub section 1 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order
 The point which has been pressed before us is that the Act is invalid as it takes away or abridges certain funda mental rights conferred by Part III of the Constitution of India and in support of this general proposition reliance is placed on article 13 2 which runs as follows  The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
 The rights guaranteed under Part III of the Constitution are classified under seven broad heads as follows  1 Right to equality 2 Right to freedom 3 Right against exploitation 4 Right to freedom of religion 5 Cultural and educational rights 6 Right to property and 7 Right to constitutional remedies
136 Most of the articles which are said to have been disre garded occur under the heading Right to freedom these articles being articles 19 1 d 21 and 22
Another article which is also said to have been violated is article 32 under which the present application for a writ of habeas corpus purports to have been made
Article 19 1is divided into seven sub clauses and runs as follows All citizens shall have the right a to freedom of speech and expression b to assemble peaceably and without arms c to form associations or unions d to move freely throughout the territory of India e to reside and settle in any part of the territory of India  f to acquire hold and dispose of property and g to practise any profession or to carry on any occupation trade or business
 Clauses 2 3 4 5 and 6 of this article pro vide that nothing in clause 1 shall affect the operation of any existing law in regard to the rights under that clause under certain conditions which are mentioned there in
Clause 5 with which we are directly concerned and which will serve as a specimen to show the nature of these provisions is to the following effect  Nothing in sub clauses d e and fof the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
 The contentions advanced on behalf of the petitioner with reference to this article are  1 that the Act under which he has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India which is guaran teed under article 19 1 d and 2 137 that under clause 5 of article 19 it is open to this Court to judge whether the restrictions imposed by the Act on the exercise of the right conferred by article 19 1 d are reasonable or otherwise
Before dealing with this argument it is necessary to understand the meaning of the words used in article 19 1d and to have a clear compre hension as to the true nature of the right conferred there under
The contention put forward on behalf of the peti tioner is that freedom of movement is the essence of person al liberty and any restraint on freedom of movement must be held to amount to abridgment or deprivation of personal liberty as the case may be according to the nature of the restraint
After very careful consideration I have come to the conclusion that this contention is well founded in law
Blackstone in his Commentaries on the Laws of England 4th Edition volume 1 page 134 states that personal liberty consists in the power of locomotion of changing  situation or moving one s person to whatsoever place one s own incli nation may direct without imprisonment or restraint unless by due course of law
 The authority of this state ment has never been questioned and it has been bodily incorporated by HJ Stephen in his Commentaries on the Laws of England and has been reproduced by Cooley in his well known treatise on Constitutional Limitations 8th Edition volume 1 page 710 which was extensively quoted by both parties in the course of their arguments
The view that freedom of movement is the essence of personal liberty will also be confirmed by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confine ment
Russell in his book on Crimes and Misdemeanours 8th Edition volume 1 page 861 dealing with the offence of false imprisonment states as follows  False imprisonment is unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or by confin ing him in a prison or 138 police station or private place or by detaining him against his will in a public place    the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty
Such interference with the liberty of another s movements is unlawful unless it may be justified   Again Dr Gour in dealing with the offence of wrongful restraint in his book on The Penal Law of British India 5th Edition page 1144 observes as follows  Following the principle that every man s person is sacred and that it is free law visits with its penalties those who abridge his personal liberty though he may have no design upon his person
But the fact that he controls its movements for ever so short a time is an offence against the King s peace for no one has the right to molest another in his free movements
 Dealing with the offence of wrongful confinement the same learned author observes as follows at page 1148 of his book   Wrongful confinement  is a species of  wrongful restraint  as defined in the last section
In wrongful restraint there is only a partial suspension of one s liberty of locomotion while in wrongful confinement there is a total suspension of liberty beyond certain circum scribing limits 
 Both these authors speak of restraint on personal liber ty and interference with the liberty of one s movements or suspension of liberty or locomotion as interchangeable terms
In Bird vs Jones 1 Coleridge J said that it is one part of the definition of freedom to be able to go whithersoever one pleases A similar opinion has been expressed by several authors including Sir Alfred Denning in his book entitled Freedom under the Law
 There can there fore be no doubt that freedom of movement is in the last analysis the essence of personal liberty and just as a man s wealth is generally measured in this country in terms of rupees annas and pies one s personal liberty depends upon the extent of his freedom of movement
But it is contended on behalf of the State that freedom of move 1 7 QB 742
139 ment to which reference has been made in article 19 1 d is not the freedom of movement to which Blackstone and other authors have referred but is a different species of freedom which is qualified by the words throughout the territory of India
 How the use of the expression throughout the territory of India can qualify the meaning of the rest of the words used in the article is a matter beyond my compre hension
In my opinion the words throughout the territory of India were used to stretch the ambit of the freedom of movement to the utmost extent to which it could be guaran teed by our Constitution
The Constitution could not guar antee freedom of movement outside the territorial limits of India and so has used those words to show that a citizen was entitled to move from one corner of the country to another freely and without any obstruction
Throughout is an amplifying and not a limiting expression and I am sur prised to find that the expression throughout the territory of India which was used to give the widest possible scope to the freedom of movement is sought to be construed as an expression limiting the scope and nature of the freedom
In my opinion the words throughout the territory of India having regard to the context in which they have been used here have the same force and meaning as the expression to whatsoever place one s own inclination may direct used by Blackstone or the expression freedom to be able to go whithersoever one pleases used by Coleridge J in Bird vs Jones 1
I am certain that neither of these authorities contemplated that the freedom of movement which is vouch safed to a British citizen is guaranteed beyond the terri torial limits of British territories
The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 1 d has been considered by the Nagpur Patna and Calcutta High Courts
The view which has been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 1 d but in the Calcutta 1 7 QB 742
140 High Court where the matter has been elaborately discussed at least five Judges have held that it does and in the ultimate analysis the number of Judges
who have held the contrary view appears to be the same
Having regard to the fact that the view expressed by so many learned Judges is opposed to the view I am inclined to take I consider it necessary to deal briefly with the main objections which have been raised in support of the narrow meaning sought to be attached to the words in article 19 1d
I have already dealt with one of them which is based on the ex pression throughout the territory of India
 A nd I shall now proceed to deal with the others seriatim
I It will be recalled that clause 5 of article 19 which I have already quoted in full provides among other things that nothing in clause 1 d shall affect the operation of any law present or future imposing reasonable restrictions on the exercise of the right of freedom of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
It has been argued that the use of the words interests of any Scheduled Tribe in this clause shows that the right guaranteed by article 19 1 d is a limited right of movement such as the right to visit different localities and to go from one place to another and is different from the expression freedom of movement which has been stated by Blackstone to be another name for personal liberty
It is pointed out that the restrictions in contemplation here are mainly restrictions preventing undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled Tribes and if the words freedom of movement had been used in the larger sense such a small matter would not have found a place in clause 5 of article 19
I must frankly confess that I am unable to appreciate this argument and to hold that a mere reference to Scheduled Tribes affects the plain meaning of the words used in clause 1 d of article 19
The words used in article 19 1 d are very wide and mean that a person can go at his will in any direction to any locality and to any distance
Re straint on a freedom
141 so wide in scope and extent may assume a variety of forms and may include internment or externment of a person his confinement to a particular locality or within the walls of a prison his being prevented from visiting or staying in any particular area etc
The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public which expression means the same thing as public interests and I think that the law in regard to preventive detention is fully covered by the expression restrictions imposed in the public interests
 But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words for the protection of the interests of any Scheduled Tribe
 A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act 1935 as well as to certain laws made for Chota Nagpur Santhai Pargangs and other localities will show that great importance has been attached in this country to
the protec tion and preservation of the members of the scheduled tribes and maintenance of order in tribal areas and this in my opinion is sufficient to account for the special mention of the scheduled tribes in clause 5
It may at first sight appear to be a relatively small matter but in their anxiety to cover the whole field of restrictive laws made whether in the public interest or in the interests of a particular community and not to leave the smallest loophole the framers of the Constitution apparently decided to draft the clause in the present form
As far as I am aware there are no restrictive laws made in the interests of any commu nity other than the scheduled tribes and I think clause 5is sufficiently comprehensive to include the smallest as well as the most complete restrictions on freedom of move ment
I am also satisfied that the mere mention of sched uled tribes in clause 5 cannot change the plain meaning of the words of the main provision which we find in article 19 1 d and confine it to some kind of peculiar and truncated freedom of 142 movement which is unconnected with personal liberty and which is unknown to any Constitution with which
we are familiar It will perhaps be not out of place to refer in this
connection to Ordinance XIV of 1943 which is one of the ordinances by which the Defence of India Act 1939 was partly amended
This ordinance provides for the apprehension and detention in custody of any person whom the authority empowered by the rules to appre hend or detain as the case may be suspects on grounds appearing to such 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 public safety or interest the defence of British India the maintenance of public order His Majesty s relations with foreign powers or Indian States the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudi cial manner the prohibition of such person from entering or residing or remaining in any area and the compelling of such person to reside and remain in any area or to do or abstain from doing anything
 The points to be noted in connection with the ordinance are  1 that it is an ordinance specifically providing for apprehension and detention 2 that notwithstanding the fact that there is a gener al reference in it to acts prejudicial to public safety or interests and maintenance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas 3 that tribal areas and scheduled tribes are kindred subjects as would appear from the Fifth Schedule appended to the Constitution and 4 that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the inter ests of persons living in those areas
143 This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and conse quently the mere mention of scheduled tribes in clause 5 does not necessarily exclude laws relating to preventive detention from the scope of article 19 5 The same remarks apply to the ordinance called The Restriction and Detention Ordinance 1944 Ordinance No III of 1944 which empow ered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety maintenance of public order as well as maintenance of peaceful conditions in tribal areas etc
It is also argued that since preventive detention amounts to a total deprivation of freedom of movement it is not a violation of the right granted under article 19 1 d in regard to which the word restriction and not deprivation has been used in clause 5
This argument also does not appeal to me
There are really two questions which fall to be decided in this case viz a Does pre ventive detention take away the right guaranteed by article 19 1 d and b if so what are the consequences if any  It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by article 19 d
The meaning of the word restriction is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right
In my opinion having regard to the context in which the word restriction has been used there is no antithesis between that word and the word depriva tion
 As I have already stated restraint on the right to move can assume a variety of forms and restriction would be the most appropriate expression to be  used in clause 5 so as to cover all those forms ranging from total to various kinds of partial deprivation freedom of movement
I will however have to advert to this subject later and will try to show that the 19 144 construction I have suggested is supported by good authori ty
It appears that some of the Judges who had to deal with the question which we have before us were greatly influenced by the argument that if the deprivation of per sonal liberty amounts to deprivation of the right granted under article 19 1 d any conviction for an offence under the Indian Penal Code involving a sentence of impris onment will be subject to judicial review on the ground of reasonableness of the provisions of the Code under which the conviction is recorded
Meredith CJ of the Patna High Court has given expression to his concern for the situation which will thereby arise in these words  It will be seen that the claim made is very sweeping indeed
It would mean that every law under which a person may be imprisoned including all the provisions of the Penal Code is open to examination by the Courts on the ground of reasonableness
It makes the Courts supreme arbiters in regard to any such legislation and they can reject it or accept it in accordance with their ideas of whether it appeals to their reason
But ideas of reasonableness or otherwise are apt to vary widely
Take for example laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not
It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts    Rattan Roy vs The State of Biharl
The obvious and strictly legal reply to this argument is that the consideration which has so greatly weighed with the learned Chief Justice is not enough to cut down the plain meaning of the general words used in article 19 5 of the Constitution
As has been pointed out in a number of cases in construing enacted words we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language 145 used King Emperor vs Benoari Lal Sharma and others 1I Apart from this aspect of the matter I agree with one of the learned Judges Of the Calcutta High Court in his remark that no calamitous or untoward result will follow even if the provisions of the Penal Code become justiciable
 I am certain that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any system of law
It seems to me that this Court should not be deterred from giving effect to a fundamental right granted under the Constitution merely because of a vague and unfounded fear that something catas trophic may happen
I have so far proceeded on the assumption that the basis of the objection raised by Meredith CJ is correct in law but in my opinion it is not
Crime has been defined to consist in those acts or omissions involving breach of a duty to which a sanction is attached by law by way of pun ishment or pecuniary penalty in the public interests
See Russell s Crimes and Misdemeanours 
Section 2 of the Indian Penal Code 1860 provides that every person shall be liable to punishment under this Code  and not otherwise for every act or omission contrary to the provisions there of of which he shall be guilty within British India  The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the right to move freely
Its primary object is to punish crime and not to restrict movement
The punishment may consist in imprisonment or a pecuniary penalty
If it consists in a pecuniary penalty it obviously involves no restriction on movement but if it consists in imprisonment there is a restriction on movement
This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable
The punishment is correlated directly with the violation of some other person s right and not with the right of 1 at p 177
146 movement possessed by the offender himself
In my opinion therefore the Indian Penal Code does not come within the ambit of the words law imposing restriction on the right to move freely 
In the course of the arguments the expression punitive detention was frequently used and the tendency was to put it on the same footing as preventive detention for the purpose of certain arguments
Punitive detention is however essentially different from preventive detention
A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a compe tent Court of justice
A person so convicted can take his case to the State High Court and sometimes bring it to this Court also and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted
The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 1 d has been violated
But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way
It was pointed out that article 19 being confined to citizens the anomalous situation will follow that in cases of preventive detention a citizen will be placed in a better position than a non citizen because if a citizen is detained his detention will be open to some kind of judicial review under article 19 5 but if a non citizen has been detained his case will not be open to such review
In this view it is said that the whole Act relating to preventive detention may be declared to be void if it is unreasonable though it concerns citizens as well as persons other than citizens
I must frankly state that I am not at all per turbed by this argument
It is a patent fact that the Constitution has confined all the rights mentioned in arti cle 19 1 to citizens
It is equally clear that restric tions on those rights are to a limited extent at least open to judicial review The very same question which is 147 raised in regard to article 19 1d will arise with regard to most of the other sub clauses
A citizen has the right to assemble peaceably and without arms to form associations or unions and so on
If there is any law imposing unreason able restrictions on any of these rights that law will not be good law so far as citizens are concerned but it may be good law so far as non citizens are concerned
I do not see why a similar situation arising with regard to the right granted under sub clause d should be stated to be anoma lous
So far as the right of free movement is concerned a non citizen has been granted certain protections in articles 21 and 22
If a citizen has been granted certain other additional protections under article 19 1 d there is no anomaly involved in the discrimination
I think that it is conceivable that a certain law may be declared to be void as against a citizen but not against a non citizen
Such a result however should not affect our mind if it is found to have been clearly within the contemplation of the framers of the Constitution
V It was contended that the rights declared by article 19 are the rights of a free citizen and if he has already been deprived of his liberty in the circumstances referred to in articles 20 21 and 22 then it would be idle to say that he still enjoys the right referred to in article 19
After giving my fullest consideration to this argument I have not been able to appreciate how it arises in this case
There is nothing in article 19 go suggest that it applies only to those cases which do not fall under articles 20 21 and 22
Confining ourselves to preventive detention it is enough to point out that a person who is preventively de tained must have been before he lost his liberty a free man
Why can t he say to those who detained him As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits imposed by clause 5of article 19
 This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations
It is true that if you put a man under detention he cannot move and therefore he is not in a position to 148 exercise the right guaranteed under article 19 1 d
but this is only the physical aspect of the matter and a person who is bed ridden on account of disease suffers from a similar disability
In law however
physical duress does not deprive a person of the right to freedom of movement
If he has been detained under some provision of law imposing restrictions on the freedom of movement then the question will arise whether the restrictions are reasonable
If he has been detained under no provision of law or under some law which is invalid he must be set at liberty
To my mind the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it namely that each article is a code by itself and is independent of the others
In my opinion it cannot be said that articles 19 20 21 and 22 do not to some extent over lap each other
The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 221 so far as his arrest and detention in custody before trial are concerned
Preventive detention which is dealt with in article 22 also amounts to deprivation of personal liberty which is referred to in article 21 and is a violation of the right of freedom of movement dealt with in article 19 1 d
That there are other instances of overlapping of articles in the Constitution may be illus trated by reference to article 19 1 f and article 31 both of which deal with the right to property and to some extent overlap each other
It appears that some learned High Court Judges who had to deal with the very question before us were greatly impressed by the statement in the report of the Drafting Committee of the Constituent Assembly on article 15 corresponding to the present article 21 that the word liberty should be qualified by the insertion of the word personal before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 corresponding to the present article 19
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article 19 1 d which are quite plain and can be construed without any 149 extraneous help
Whether the report of the Drafting Commit tee and the debates on the floor of the House should be used at all in construing the words of a statute which are words of ordinary and common use and are not used in any technical or peculiar sense is a debatable question and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter
But apart from these legal consider ations it is I think open to us to analyse the statement and see whether it goes beyond adding a somewhat plausible reason a superficially plausible reason for a slight verbal change in article 21
It seems clear that the addi tion of the word personal before liberty in article 21 cannot change the meaning of the words used in article 19 nor can it put a matter which is inseparably bound up with personal liberty beyond its place
Personal liberty and personal freedom in spite of the use of the word personal  are as we find in several books sometimes used in a wide sense and embrace freedom of speech freedom of asso ciation etc
These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word personal
 A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 1d which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority
The words used in article 19 1 d must be construed as they stand and we have to decide upon the words themselves whether in the case of preventive detention the right under article 19 1 d is or is not infringed
But as I shall point out later however literally we may construe the words used in article 19 1 d and however restricted may be the meaning we may attribute to those words there can be no escape from the conclusion that preventive detention is a direct infringe ment of the right guaranteed in article 19 1 d
150 Having dealt with the principal objections I wish to revert once again to the main topic
The expressions per sonal liberty and personal freedom have as we find in several books a wider meaning and also a narrower meaning
In the wider sense they include not only immunity from arrest and detention but also freedom of speech freedom of association etc
In the narrower sense they mean immunity from arrest and detention
I have shown that the juristic conception of personal liberty  when these words are used in the sense of immunity from arrest is
that it consists in freedom of movement and locomotion
I have also pointed out that this conception is at the root of the criminal law of England and of this country so far as the offences of false imprisonment and wrongful confinement are concerned
The gravamen of these offences is restraint on freedom of movement
With these facts in view I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention but I find no trace of any such freedom
In Halsbury s Laws of England 2nd Edition volume 6 page 391 the freedoms mentioned are the right to per sonal freedom or immunity from detention or confinement the right to property the right to freedom of speech the right of public meeting the right of association etc
Similar classifications will be found in Dicey s Introduc tion to the Study of the Law of the Constitution and Keith s Constitutional Law and other books on constitu tional subjects but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to
construe the words used in article 19 1 d
In the Constitutions of America Ireland and many other countries where freedom is prized there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement
The obvious explanation is that in legal conception no freedom or right of movement exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary
It is only in the Constitution of the Free 151 City of Danzig which covers an area of 701 square miles that we find these words in article 75  All nationals shall enjoy freedom of movement within the City
 There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty
The problem of construc tion in regard to this particular right in the Constitution of Danzig is the same as in our Constitution
Such being the general position I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception and the words used in article 10 1 d must be construed according to this universally accepted legal conception
This conclusion is further supported by reference to the war legislation in England and in India upon which the law of preventive detention which has been in force in this country since the war is based
In the first world war the British Parliament passed the Defence of the Realm Consoli dation Act in 1914 and a number of regulations were made under it including regulation 14 B which permitted the Secretary of State to subject any person to such obliga tions and restrictions as hereinafter mentioned in view of his hostile origin or associations Lord Atkin in refer ring to this regulation said in Liversidge vs Sir John Anderson 1 that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person Apparently Lord Atkin meant that the restriction referred to in the Act included preventive detention
Under this regulation one Arthur Zadig was interned and he applied to the King s Bench for a writ of habeas corpus which was refused
The matter ultimately came up before the House of Lords in Rex vs Halliday 2 and the noble Lords in dealing with the case proceeded on the assumption that there was no difference between internment and incarceration or imprisonment
Lord Shaw in narrating the facts of the case stated  1 2  20 152 His person was seized he has been interned 
The appellant lost his liberty and was interned   He then proceeded to state that there was no difference between internment and imprisonment and quoted the following passage from Blackstone  The confinement of the person in any wise is an imprisonment
So that the keeping a man against his will in a private house putting him in the stocks arresting or forcibly detaining him in the street is an imprisonment
 Proceeding on this footing which I find to be the common basis in all other speeches delivered in the case though Lord Shaw had given a dissenting judgment Lord Finlay while dealing with the provisions of the regulations observed  One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy 1
Again Lord Atkinson while dealing with the merits of the case made the following observations  If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts or take away any right conferred by Magna Charta   2
This passage read with the previous passage quoted by me will show that both internment and incarceration were re garded as restrictions on the freedom of movement and that deprivation of liberty and restriction on freedom of move ment were used as alternative expressions bearing the same meaning
The same conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers DefenceAct 1939
The regulation which directly dealt with detention orders was 18 B
This regulation and a number of other regulations have been placed in Part I under the heading Restrictions 1 2 153 On movements and activities of persons 
 The classifica tion is important because it meets two principal arguments advanced in this case
It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement
I have noticed that movement is used in plural and the heading also refers to restrictions on activities but having regard to the subjects classified under this head movement undoubtedly refers to physical movement and includes such movements as entering a particu lar locality going from one place to another etc
 ie the very things to which article 19 1 d is said to have reference
In Liversidge s case in construing the provi sions of the Act of 1939 Viscount Maugham observed as follows  The language of the Act of 1939 above cited shows beyond doubt that Defence Regulations may be made which must deprive the subject whose detention appears to the Secre tary of State to be expedient in the interests of public safety of all his liberty of movement while the regulations remain in force1
Thus Viscount Maugham also considered detention to be synonymous with deprivation of liberty of movement
The classification that we find in the Defence of the Realm Regulations was with a little verbal modification adopted in the Defence of India Rules and we find that here also rule 26 which dealt with preventive detention has been placed under the heading Restriction of movements and activities of persons
 A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordinances relating to maintenance of order see section 2 of the Bihar Maintenance of Public Order
Act 1949 section 16 of the West Bengal Security Act 1948 section 4 of the East Punjab Public Safety Act 1949 section 2 of the Madras Maintenance of Public Order Act 1947 section 3 of the UP Maintenance of Public Order Temporary Act 1947 and section 2 of the Bombay Public Security Measures Act 1947
In these Acts and Ordinances preventive detention and certain 1 154 other forms of restriction on movement such as internment externment etc have been classed together and dealt with more or less on the same footing and sometimes they have been dealt with in different clauses of the same section
In one of the Acts the same advisory board is to deal with the case of a detenue as well as that of an externed person and there are also similar provisions giving them the right to represent their case to the Government
I will now assume for the sake of argument that the freedom of movement to which reference is made in article 19 1 d has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them by the learned Attorney General and some of my colleagues
It seems to me that even on this assump tion it is difficult to arrive at any conclusion other than what I have already arrived at
There can be no doubt that preventive detention does take away even this limited free dom of movement directly and substantially and if so I do not see how it can be argued that the right under article 19 1 d is not infringed if the alternative interpretation is accepted
We have only to ask ourselves Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention  I think I should refer here once more to the fact that in the Defence of the Realm Regula tions and Defence of India Rules preventive detention is classed under the heading Restriction of movements and activities Movement is here used in plural and refers to that very type of movement which is said to be protected by article 19 1 d moving from one State or place to another visiting different localities etc
One of the objects of preventive detention is to restrain the person detained from moving from place to
place so that he may not spread disaffection or indulge in dangerous activities in the  places he visits
The same consideration applies to the cases of persons who are interned or externed
Hence externment 155 internment and certain other forms of restriction on move ment have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the other
It is difficult to hold that the case of externment can possibly be dealt with on a different footing from the case of preventive deten tion
I am however interested to find that the Patna and Bombay High Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 1 d has been violated
This view has not been seriously challenged before us and if it is correct I really do not see how it can be held that preventive deten tion is also not a direct invasion of the right guaranteed in article 19 1 d
Perhaps one may pause here to ask what kind of laws were in contemplation of the framers of the Constitution when they referred to laws imposing re strictions in the public interest in article 19 5
I think the war laws and the Provincial Acts and Ordinances to which I have already referred must have been among them these being laws which expressly purport to impose restrictions on movements
If so we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on movement and classified as such
It seems to me that when the matter is seriously considered it would be found that the interpreta tion of the learned Attorney General attracts the operation of article 13 2 no less strongly and directly than the interpretation I have suggested and I prefer the latter only because I consider that it is legally unsound to treat what is inseparably bound up with and is the essential element in the legal concept 1of personal liberty as a wholly separate and unconnected entity
But as I have already indicated it will be enough for the purpose of this case if we forget all about personal liberty and remember only that detention is as is self evident and as has been pointed out by Viscount Maugham and other eminent judges another name for depriving a person of all his liberty of movement
 It was pointed out in the course of the arguments 156 that preventive detention not only takes away the right in article 19 1 d but also takes away all the other rights guaranteed by article 19 1 except the right to hold acquire and dispose of property
Where exactly this argu ment is intended to lead us to I cannot fully understand but it seems to me that it involves an obvious fallacy because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub clause d and other sub clauses of article 19 1
The difference is that while preventive detention operates on freedom of movement directly and inevitably its operation on the other rights is indirect and consequential and is often only notional
One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention but he loses the other rights only in consequence of his losing freedom of movement
Beside while freedom of movement is lost by him in all reality and substance some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them
A person who is detained may not be interested in freedom of association or may not pursue any profession occupation trade or business
In such a case the rights referred to are lost only in theory and not as a matter of substance
I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with what I had in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article
19 1 the matter deserves very serious consideration and we cannot lightly lay down that article 13 2 does not come into operation
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional I have again and again asked myself the question What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19 1 d The inevitable answer has always been that while in one of the scales 157 we have plain and unambiguous language the opinion eminent jurists judicial dicta of high authority constitu tional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based all that we can put in the opposite scale is a vague and ill rounded apprehension that some fearful object such as the revision of the Penal Code is looming obscurely in the distant horizon the peculiar objection that the mere men tion of the scheduled tribes will alter the meaning of certain plain words the highly technical and unreal dis tinction between restriction and deprivation and the assump tion not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which whether taken singly or collectively are too unsubstantial to carry any weight
In these circum stances I am strongly of the view that article 19 1d guarantees the right of freedom of movement in its widest sense that freedom of movement being the essence of person al liberty the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right
I am also of the view that even on the interpretation suggested by the learned Attor ney General preventive detention cannot but be held to be a violation of the right conferred by article 19 1 d
In either view therefore the law of preventive detention is subject to such limited judicial review as is permitted under article 19 5
The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions
Considering that the restrictions are imposed on a most valuable right there is nothing revolutionary in the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason
I will now pass on to the consideration of article 21 which runs as follows  No person shall be deprived of his life or personal 158 liberty except according to procedure established by law
 Here again our first step must be to arrive at a clear meaning of the provision
The only words which cause some difficulty in the proper construction of the article are procedure established by law The learned Attorney General contended before us that the word law which is used in article 21 means State made law or law enacted by the State
On the other hand the learned counsel for the petitioner strongly contended that the expression procedure established by law is used in a much wider sense and approximates in meaning to the expres sion due process of law as interpreted by the Supreme COurt of America in the earliest times and if that is so it means exactly what some of the American writers mean to convey by the expression procedural due process In the course of the arguments the learned Attorney General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words without due process of law but these words were subsequently replaced by the words except according to procedure established by law In my opinion though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21 especially when they are plain and unambiguous they are relevant to show that the Assembly intended to avoid the use of the expression without due process of law
 That expression had its roots in the expression per legem terrae law of the land used in Magna Charta in 1215
In the reign of Edward III however the words due process of law were used in a statute guaranteeing that no person will be de prived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law 28 Edward III Ch
The expression was after wards adopted in the American Constitution and also in the Constitutions of some of the constituent States though some of the States preferred to use the 159 words in due course of law or according to the law of the land See Cooley on Constitutional Limitations 8th Edn
II pages 734 51
In the earliest times the American Supreme Court construed due process of law to cover matters of procedure only but gradually the meaning of the expression was widened so as to cover substantive law also by laying emphasis on the word due
 The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was ob served as follows  It would be difficult and perhaps impossible to give to those words a definition at once accurate and broad enough to cover every case
This difficulty and perhaps impossi bility was referred to by Mr Justice Miller in Davidson vs New Orleans where the opinion was expressed that it is wiser to ascertain their intent and application by the gradual process of judicial inclusion and exclusion  as the cases presented for decision shall require with the reasoning on which such decisions may be rounded Missouri Pacific Railway Co vs Humes 1
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it but preferred to use the words according to procedure established by law which occur in the Japanese Constitution framed in 1946
It will not be out of place to state here in a few words how the Japanese Constitution came into existence
It appears that on the 11th October 1945
General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution but as no progress was made it was
decided in February 1946 that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander s Headquar ters
Subsequently the Chief of this Section and the staff drafted the Constitution with the help of American constitu tional lawyers who were called to assist the Government Section in the task
This Constitution as a learned writer has remarked bore 1  at page 513
21 160 on almost every page evidences of its essentially Western origin and this characteristic was especially evident in the preamble particularly reminiscent of the American Declaration of Independence a preamble which it has been observed no Japanese could possibly have conceived or written and which few could even understand See Ogg and Zink s Modern Foreign Governments
One of the character istics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chap ter consisting of 31 articles entitled Rights and Duties of the People which provided for the first time an effec tive Bill of Rights for the Japanese people
The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause articles 33 and 34
Now there are two matters which deserve to be noticed  1 that the Japanese Constitution was framed wholly under American influence and 2 that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression due process of law to what is expressed by certain American writers by the somewhat quaint but useful expression proce dural due process
 That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher s The Growth of Constitutional Power in the United States page 107 The American history of its interpretation falls into three periods
During the first period covering roughly the first century of government under the Constitution due process was interpreted principally as a restriction upon procedure and largely the judicial procedure by which the government exercised its powers
During the second period which again roughly speaking extended through 1936 due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage
During the third period extending from 1936 to date the use of due 161 process as a substantive restriction has been largely sus pended or abandoned leaving it principally in its original status as a restriction upon procedure
 In the circumstances mentioned it seems permissible to surmise that the expression procedure established by law as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to due process of law and if that is so the expression as used in our Constitution means all that the American writers have read into the words procedural due process But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits
The word law may be used in an abstract or concrete sense
Sometimes it is preceded by an article such as a or the or by such words as any all etc and sometimes it is used without any such prefix
But generally the word law has a wider meaning when used in the abstract sense without being preceded by an article
The question to be decided is whether the word law means nothing more than statute law
Now whatever may be the meaning of the expression due process of law the word law is common to that expression as well as procedure established by law and though we are not bound to adopt the construction put on law or due process of law in America yet since a number of eminent American Judges have devoted much thought to the subject I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them
I will therefore in the first instance set out certain quotations from a few of the decisions of the American Supreme Court construing the word law as used in the expression due process of law in so far as it bears on the question of legal procedure
1 Although the legislature may at its pleasure provide new remedies or change old ones the power is never theless subject to the condition that it cannot remove certain ancient land marks or take away certain fundamen tal rights which have been always 162 recognized and observed in judicial procedures Bardwell vs Collins 1
2  By the law of the land is most clearly intended the general law a law which hears before it condemns which proceeds upon inquiry and renders judgments only after trial
The meaning is that every citizen shall hold his life liberty and property and immunities under the protection of the general rules which govern society Dartmouth College Case 2
3 Can it be doubted that due process of law signifies a right to be heard in one s defence  If the legislative department of the government were to enact a statute confer ring the right to condemn the citizen without any opportuni ty whatever of being heard would it be pretended that such an enactment would not be violative of the Constitution  If this be true as it undoubtedly is how can it be said that the judicial department
the source and fountain of justice itself has yet the authority to render lawful that which if done under express legislative sanction would be viola of the Constitution  If such power obtains then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it
If such authority exists then in conse quence of their establishment to compel obedience to law and enforce justice Courts possess the right to inflict the very wrongs which they were created to prevent Hovey vs Elliott3
4 It is a rule as old as the law and never more to be respected than now that no one shall be personally bound until he has had his say in Court by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard
Judgment without such citation and opportunity wants all the attributes of a judicial determi nation it is judicial usurpation and oppression and can never be upheld where justice is justly administered Gatpin vs Page4
Thus in America the word law does not mean merely State made law or law enacted by the State and does not exclude certain fundamental principles of 1  3  at page 417
2 4 163 justice which inhere in every civilized system of law and which are at the root of it
The result of the numerous decisions in America has been summed up by Professor Willis in his book on Constitutional Law at page 662 in the statement that the essentials of due process are 1 no tice 2 opportunity to be heard 3 an impartial tribu nal and 4 orderly course of procedure
It is pointed out by the learned author that these essentials may assume different forms in different circumstances and so long as they are conceded in principle the requirement of law will be fulfilled
For example a person cannot require any particular form or method of hearing but all that he can require is a reasonable opportunity to be heard
Similarly an impartial tribunal does not necessarily mean a judicial tribunal in every case
So far as orderly course of proce dure is concerned he explains that it does not require a Court to strictly weigh the evidence but it does require it to examine the entire record to ascertain the issues to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts
The view expressed by other writers is practically the same as that expressed by Professor Willis though some of them do not expressly refer to the fourth element viz orderly course of procedure
The real point however is that these four elements are really different aspects of the same right viz the right to be heard before one is condemned
So far as this right is concerned judicial opinion in England appears to be the same as that in America
In Eng land it would shock one to be told that a man can be de prived of his personal liberty without a fair trial or hearing
Such a case can happen if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during the last two world wars in a limited number of cases
I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also in proceedings affecting other rights even though they may have 164 come before administrative or quasi judicial tribunals
Cooper vs The Wadsworth Board of Works 1was a case under an Act which empowered the District Board to alter or demol ish a house where the builder had neglected to give notice of his intention
seven days before proceeding to lay or dig the foundation
Acting upon this power the Board directed the demolition of a building without notice to the builder but this was held to be illegal
Byles 5
in dealing with the matter observed as follows  I conceive they acted judicially because they had to determine the offence and they had to apportion the punish ment as well as the remedy
That being so a long course of decisions beginning with Dr Bentley s case and ending with some very recent cases establish that although there are no positive words in a statute requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature
The judgment of Mr Justice Fortescue in Dr Bentley s case is somewhat quaint but it is very applicable and has been the law from that time to the present
He says The objection for want of notice can never be got over
The laws of God and man both give the party an opportunity to make his defence if he has any
 In the same case Erie CJ observed  It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard is limited to a judicial proceeding
I do not quite agree with that  the law I think has been applied to many exercises of power which in common under standing would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down The observations made by Erie CJ were quoted and applied by Sir Robert Collier in Smith vs The  Queen 2 and the observations of Lord Campbell in Regina vs The Archbishop of Canterbury 3 were to the same effect
1  2 3 AC 614
3 1E E 559
165 A similar opinion was expressed by Sir GeorgeJessel in Fisher vs Keane 1 Labouchere vs Earl of Wharncliffe 2 and Russell vs Russell 3
In the last mentioned case he observed as follows  It Wood vs Woad 4 contains a very valuable state ment by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard namely the case of Fisher vs Keane and the case of Labouchere vs Earl of Wharncliffe
The passage I mean is this referring to a committee They are bound in the exercise of their functions by the rule expressed in the maxim audi alteram partem that no man should be condemned to consequences without having the opportunity of making his defence
This rule is not confined to the con duct of strictly legal  tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals 
 This opinion was quoted with approval by Lord Macnaghten in Lapointe vs L Association etc
de Montreal 5
In that case on an application for pension by the appellant who had been obliged to resign the Board of Directors without any judicial inquiry into the circumstances resolved to refuse the claim on the ground that he was obliged to tender his resignation
This procedure was condemned by Lord Macnaghten as being contrary to rules of society and above all contrary to the elementary principles of justice
 These observations of Lord Macnaghten were referred to and relied on in The King vs Tribunal of Appeal under the Hous ing Act 1919 6
In that case a company proposed to build a picture house and the local authority having prohibited the building the company appealed under the Housing 1 H Ch D 353
4 1874 LR 9 exhibit 190
2 13 Oh D 346
5 3 6 166 Additional Powers Act 1919 which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dis pense with the hearing and determine the appeal summarily
It was held that the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing not that they might dispense with a hearing of any kind and that they were bound to give the appellants a hearing in the sense of an opportunity to make out a case
The Earl of Reading in delivering the judgment observed The principle of law applicable to such a case is well stated by Kelly CB in Wood vs Woad in a passage which is cited with approval by Lord Macnaghten in Lapointe vs L  Association etc
de Montreal   In Local Government Board vs Arlidge1 the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing Town Planning c Act without an oral hearing and without being allowed to see the report made by the Board s Inspector upon public local inquiry
The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the commu nity and whose character was that of an organization with executive functions
The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed those whose duty it is to decide it must act judicially and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case and that the decision must be come to in the spirit and with the sense of respon sibility of a tribunal whose duty it is to mete out justice
Commenting upon this case which is generally regarded as an extreme case Mr Gavin Simonds who afterwards became a member of the House of Lords observes  1 1915 AC120
167 I think you would agree that if the subjectmatter of such proceedings as arc here indicated was the liberty of the subject or indeed his life you would regard such a judicial procedure as outrageous
 See CK Allen s Law and Orders page 167
I have particularly referred to cases which were before administrative tribunals because I have to deal in this case with preventive detention which is said to be an execu tive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one s rights without giving one such hearing as may be appropriate to the circum stances of the case
I have only to add that Halsbury after enumerating the most important liberties which are recog nized in England such as right of personal freedom right to freedom of speech right of public meeting etc
 adds  It seems to me that there should be added to this list the following rights which appear to have become well estab lished the right of the subject to have any case affecting him tried in accordance with the principles of natural justice particularly the principles that a man may not be a judge in his own cause and that no party ought to be con demned unheard or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case  Halsbury s Laws of England 2nd Edition volume 6 page 392
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well recognized in all modern civilized systems of law and which Halsbury puts on a par with well recognized fundamental rights cannot be regarded as part of the law of this country
I must confess that I find it difficult to give a negative answer to this question
The principle being part of the British system of law and procedure which we have inherited has been observed in this country for a very long the and is also deeply rooted in our ancient history being the basis of the 168 panchayat system from the earliest times
The whole of the Criminal Procedure Code whether it deals with trial of offences or with preventive or quasiadministrative measures such as are contemplated in sections 107 108 109 110 and 145 is based upon the foundation of this principle and it is difficult to see that it has not become part of the law of the land and does not inhere in our system of law
If that is so then procedure established by law must include this principle whatever else it may or may not include
That the word law used in article 21 does not mean only State made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases when the contempt is not within the view of the Court yet such procedure as now prevails in these cases is part of our law
The statute law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases but it has always been held that no decision should be pronounced without hearing arguments
In a number of cases it has been held that though there may be no specific provision for notice in the statute the provision must be read into the law
I am aware that some Judges have ex pressed a strong dislike for the expression natural jus tice on the ground that it is too vague and elastic but where there are well known principles with no vagueness about them which all systems of law have respected and recognized they cannot be discarded merely because they are in the ultimate analysis found to be based on natural jus tice
That the expression natural justice is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice
See In re Abraham Mallory Dillet 1 Taba Singh vs King Emperor C George Gfeller vs The 1 12 AC 459
2 ILR 48 Born
515 169 King1 and Bugga and others vs Emperor2
In the present case there is no vagueness about the right claimed which is the right to have one s guilt or innocence considered by an impartial body and that right must be read into the words of article 21
Article 21 purports to protect life and person al liberty and it would be a precarious protection and a protection not worth having if the elementary principle of law under discussion which according to Halsbury is on a par with fundamental rights is to be ignored and excluded
In the course of his arguments the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England
The question envisages something which is not likely to happen but it does raise a legal problem which can perhaps be met only in tiffs way that if the expression procedure established by law simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question but ii the word law includes what I have endeavoured to show it does such an answer may be justified
It seems to me that there is nothing revolutionary in the doctrine that the words procedure established by law must include the four principles set out in Professor Willis  book which as I have already stated are different aspects of the same principle and which have no vagueness or uncertainty about them
These principles as the learned author points out and as the authorities show are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits
I have only to add that it has not been seriously controverted that law in this article means valid law and procedure means certain definite rules of proceeding and not something which is a mere pretence for procedure
I will now proceed to examine article 22 of the Consti tution which specifically deals with the subject 1 AIR 1943PC 211
2 AIR 1919P C 108
170 of preventive detention
The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21 and it must be read subject to those two articles in the same way as articles 19 and 21 must be read subject to article 22
The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention but where there are no such provisions in that article the operation of articles 19 and 21 cannot be excluded
The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated
I will now proceed to analyse the article and deal with its main provisions
In my opinion the main provisions of this article are  1 that no person can be detained beyond three months without the report of an advisory board clause 4 a  2 that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board clause 7 a 3 that when a person is preventively detained the author ity making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representa tion against the order clause 5  and 4 that the Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention clause 7 b 
The last point does not require any consideration in this case but the first three points do require considera tion
In connection with the first point the question arises as to the exact meaning of the words such detention occur ring in the end of clause 4 a
Two alternative interpre tations were put forward 1 such detention means preven tive detention 2 such detention means detention for a period longer than three months
If the first interpreta tion is correct then the function of the advisory board would be to go into the merits of the case of each person and simply 171 report whether there was sufficient cause for his detention
According to the other interpretation the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months
On the whole I am inclined to agree with the second interpretation
Prima facie it is a seri ous matter to detain a person for a long period more than three months without any enquiry or trial
But article 22 4 a provides that such detention may be ordered on the report of the advisory board
Since the report must be directly connected with the object for which it is required the safeguard provided by the article viz calling for a report from the advisory board loses its value if the advisory board is not to apply its mind to the vital ques tion before the government namely whether prolonged deten tion detention for more than three  months is justified or not
Under article 22 4 a the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day
It would be some what farcical to provide that after a man has been detained for eighty nine days an advisory board is to say whether  his initial detention was justified
On the other hand the determination of the question whether prolonged detention detention for more than three monthsis justified must necessarily involve the determination of the question wheth er the detention was justified at all and such an interpre tation only can give real meaning and effectiveness to the provision
The provision being in the nature of a protection or safeguard I must naturally lean towards the interpreta tion which is favourable to the subject and which is also in accord with the object in view
The next question which we have to discuss relates to the meaning and scope of article 22 7a which runs as follows Parliament may by law prescribe a the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining 172 the opinion of an Advisory Board in accordance with the provisions of sub clause a of clause 4
 The question is what is meant by circumstances  and class or classes of cases used in this provision
This question has arisen because of the way in which these ex pressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned
As the matter is important and somewhat complicated I shall try to express my meaning as clearly as possible even at the risk of some repetition and in doing so I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution under which Parliament had jurisdiction to enact it
Item 9 of List I Union List shows that the Parliament has power to legislate on preventive detention for reasons connected with 1 defence 2 foreign affairs and 3 security of India
Under List III Concurrent List the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with 1 the security of the State 2 the maintenance of public order and 3 the maintenance of supplies and services essential to the community
The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made
Section 3 1of the Act the substance of which has already been mentioned is important and I shall reproduce it verbatim
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 the maintenance of supplies and services essen tial to the community or 173 b if satisfied with respect to any person who is a foreigner within the meaning of the XXXI of 1946 that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do make an order directing that such person be detained
 It will be noticed that all the subjects of legislation concerning preventive detention occurring in item of List I are grouped in sub clause 1 of clause a
The subjects in this group are three in number and for convenience of reference I shall hereafter refer to them as A B and C
In sub clause ii we find grouped two of the matters referred to in item 3 of List III these being security of the State and the maintenance of public order
These two subjects I shall refer to as D and E
In sub clause iii reference has been made to the third matter in item 3 of List III and I shall refer to this subject as F With this classification let us now turn to the Constitution itself
On reading articles 22 4 and 22 7 together it would be clear that so long as article 22 4 a holds the field and Parliament does not act under clause 7 a of article 22 there must be an advisory board in every case ie if the legislation relates to groups A to F as it does here there must be an advisory board for all these groups
Article 22 7 however practically engrafts an excep tion
It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board but in such cases it shall be incumbent on the Parliament to prescribe 1 the circumstances and 2 the class or classes of cases in which such course is found to be necessary
If the case contemplated in clause 4ais the rule and that contem plated in clause 7 a is the exception then the circum stances and the class or classes of cases must be of a special or extraordinary nature so as to take the case out of the rule and bring it within the exception
It is always 174 possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases
and this is what in my opinion the Parliament was expected to do under clause 7 a
I do not think that it was ever intended that Parliament could at its will treat the normal as the abnor mal or the rule as the exception
But this is precisely what has been done in this case All the items on which preventive legislation is possible excepting one ie A to E have been put within the exception and only one F which relates to maintenance of supplies and services essen tial to the community has been allowed to remain under the rule
In other words it is provided that there shall be an advisory board only for the last category F but no provi sion having been made for the other categories A to E it may be assumed that the advisory board has been dispensed with in those cases
The learned Attorney General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F and if such a course had been adopted it would not have affected the validity of the Act
This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand but in my opinion the course adopted by the Parliament in enacting section 12 of the impugned Act is not what is contemplated under article 22 7 a or is permitted by it
The circumstances to be prescribed must be special and extraordinary circumstances and the class or classes of cases must be of the same na ture
In my opinion the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with
I may state here that two views are put forward before us as to how clauses 4 a and 7 a of article 22 are to be read 1 that clause 4 a lays down the rule that in all cases where detention for more than three months is ordered it should be done in consultation with and on the report of the advisory 175 board and clause 7 a lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board 2 that clauses 4a and 7 a are independent clauses making two separate and alternative provisions regarding detention for more than three months in one case on the report of an advisory board and in other case without reference to an advisory board
Looking at the substance and not merely at the words I am inclined to hold that clause 7 a practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board and so far I have proceeded on that footing
But it seems to me that it will make no difference to the ulti mate conclusion whichever of the two views we may adopt
Even on the latter view it must be recognized that the law which the Constitution enables the Parliament to make under article 22 7 a would be an exceptionally drastic law and on the principle that an exceptionally drastic law must be intended for an exceptional situation every word of what I have said so far must stand
Clause 7 a is only an enabling provision and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes cases and the circumstances to which the extreme law would be applicable
It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation
It was urged that the word and which occurs between circumstances and class or classes of cases is used in a disjunctive sense and should be read as or and by way of illustration it was mentioned that when it is said that a person may do this and that it means that he is at liberty to do either this or that
I do not think that this argu ment is sound
I think that clause 7a can be accurately paraphrased somewhat as follows   Parliament may dispense with an advisory board but in that case it shall prescribe the circumstances and the class or 23 176 classes of cases   If this is the meaning then  and must be read as and and not as or and may must be read as shall
 Supposing it was said that Parliament may prescribe the time and place for the doing of a thing then can it be suggested that both time and place should not be prescribed  It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both Circumstances on the other hand refer to something extra neous such as surroundings background prevailing condi tions etc which might prove a fertile field for the dangerous activities of dangerous persons
Therefore the provision clearly means that both the circumstances and the class or classes of cases which are two different expres sions with different meanings and connotations and cannot be regarded as synonymous should be prescribed and prescrip tion of one without prescribing the other will not be enough
As I have already stated such law as can be enact ed under article 22 7 a must involve by reason of the extreme limit to which it can go serious consequences to the persons detained
It will mean 1 prolonged detention ie detention for a period longer than three months and 2 deprivation of the safeguard of an advisory board
Hence article 22 7 a which purports to be a protective provi sion will cease to serve its object unless it is given a reasonable interpretation
To my mind what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances
It was contended that the expression class or classes of cases is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III items 9 and 3 respectively ie any of the categories A to F as constituting a class
At first sight it seemed to me to be a plausible argument but the more I think about it the more unsound it appears to me
The chief thing to be remem bered is what I have already emphasized more than once viz that a special or extreme type of law must be limited to special classes of cases and circumstances
Under the 177 Constitution the Parliament has to prescribe the class or classes acting within the limits of the power granted to it under Lists I and III
The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provid ed by the Constitution
Prescribing is more than a mere mechanical process
It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed
We find here that what is to be prescribed is class or classes and also circumstances 
We also find that what the law intends to provide is prolonged detention by which words I shall hereafter mean detention for more than three months and elimination of the advisory board
The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say   That is the reason why the law has prescribed prolonged detention without reference to an advisory board
 In other words there must be something to make the class or classes prescribed fit in with an extreme type of legisla tion some element of exceptional gravity or menace which cannot be easily and immediately overcome and therefore necessitates prolonged detention and there must be some thing to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies
Perhaps a simple illustration may make the position still clearer
Under the Lists one of the subjects on which Parliament may make a law of preventive detention is matter connected with the maintenance of public order
 The Act simply repeats this phraseology and states in sec tion 3 with a view to preventing him the person to be detained from acting in a manner prejudicial to the main tenance of public order
 This may be all right for section 3 but section 12 must go further
An act prejudicial to
the maintenance of public order may be an ordinary act or it may be an act of special gravity
I think that article 22 7a contemplates that the graver and 178 more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order or other heads should be prescribed so as to define and cir cumscribe the area of an exceptional piece of legislation
That some kind of sub classification if I may be per mitted to use this word of the categories A to F was possi ble can be illustrated by reference to regulation 18 3 of the British Defence of the Realm Regulations
This regula tion was made under an Act of 1039 which authorized the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm
 The two matters public safety and defence of the realm are analogous to some of the heads stated in Lists I and III
It will be instructive to note that under these two heads regulation 18 B has set forth several subheads or class or classes of cases in which preventive detention could be ordered
These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention
The classes set out are these  1 If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associa tions 2 if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts 3 if the Secretary of State has reasonable cause to believe any person to have been or to be a member of or to have been or to be active in the furtherance of the objects of any such organization as is hereinafter mentioned  a the organization is subject to foreign influence or control b the persons in control of the organization have or have had associations with persons concerned in the government of or sympathies with the system of government of any Power with which His Majesty is at war and in either case there is danger of the utilization of the organization for pur poses prejudicial to the public safety etc 4 if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy indicates or indicate that person is likely to assist the enemy
I have only to point out that the scope within which preventive detention can be legislat ed upon in this country is much larger than the scope indi cated in the British Act under which Regulation 18 B was framed and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act
But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22 7 a
These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful
They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preven tive action
The evident meaning of article 22 7 a seems to be that the picture will not be complete without mentioning both the classes and the circumstances
There was some discussion at the Bar as to what kind of circumstances might have been specified
It is not for me to answer this question but I apprehend that an impending rebellion or war serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as disturbed areas tense communal situation prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view
I will now try to sum up the result of a somewhat pro tracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has in my opinion been completely misunderstood by the framers of the 180 impugned Act
It appears to me that article 22 deals with three classes of preventive detention  1 preventive detention for three months 2 preventive detention for more than three months on the report of the advisory board and 3 preventive detention for more than three months without reference to the advisory board
If one has to find some kind of a label for these class es for a clear understanding of the subject one may label them as dangerous more dangerous and most danger ous
 Now so far as the first two classes are concerned there is nothing to be prescribed under the Constitution Apparently the authors of the Constitution were not much concerned about class No 1 and they thought that in so far as class No 2 was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough
But they did take care to make a special provision for class No 3 and it is extermly important for the liberty of the subject as well as for the smooth working of the Constitu tion that this provision should not be lightly treated but should receive a well considered and reasonable construc tion
It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating and it is also evident that the law which the Parliament has been permitted to enact under article 22 7 a can so far as rigour is concerned go to the I farthest limit
It follows that the law must have been intended for exceptionally grave situations and exigencies
Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22 7 a so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it and its application should be confined to the classes and circumstances specified
The Act must prescribe 1 cass or classes of cases which are to have reference to the persons
181 against whom the law is to operate and their activities and movements and 2 circumstances which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures
By means of such two fold prescription the sphere for the application of the law will be confined only to a special type of cases it will be less vague less open to abuse and enable those who have to administer it to determine objec tively when a condition has arisen to justify the use of the power vested in them by the law
This in my opinion is the true meaning and significance of article 22 7 a and any attempt to whittle it down will lead to deplorable results
Having stated my views as to the construction of article 22 7 a I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision
In my opinion it does not because it fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution
It does not prescribe circumstances at all and though it purports to prescribe the class or classes it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped
I have sufficiently dwelt on this part of the case and shall not repeat what I have already said
But I must point out that even if it be assumed that the view advanced by the learned Attorney General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constitut ing a class and to include it without any qualification or change the impugned section cannot be saved on account of a two fold error  
1 the word and which links class or classes with circumstances in article 22 7 a has been wrongly construed to mean or  and 2 the distinction between circumstances and class or classes has been completely ignored and they are used as interchangeable terms
The first error appears to me to be quite a serious one because though the Constitution lays down two require ments and insists 182 on the prescription of circumstances as well as class or classes it has been assumed in enacting section 12 that prescription of one of them only will be enough
The other error is still more serious and goes to the root of the matter
There can be no doubt that circumstances and class or classes are two different expressions and have different meanings but the Act proceeds on the assumption that cir cumstances are identical with class or classes as will appear from the words any person detained in any of the following classes of cases or under any of the following circumstances used in the section
I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character
There fore to confuse classes with circumstances and to omit to mention circumstances at all are in my opinion grave errors
There can in my opinion be no escape from the conclusion that section 12 of the Act by which a most impor tant protection or safeguard conferred on the subject by the Constitution has been taken away is not a valid provision since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it
I will now briefly deal with article 22 5 which makes it incumbent on the authority ordering preventive deten tion to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order
It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person and it cannot be read as limiting any rights which he has under the law or any other provisions of the Consti tution
If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal that right still remains
In point of fact there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal
On the other hand the right to make a representation which has 183 been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons
There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been de tained without reason
If this right had been expressly taken away by the Constitution there would have been an end of the matter but it has not been expressly taken away and I am not prepared to read any implicit deprivation of such a valuable right
The mere reference to an advisory board in article 22 4 a does not if my interpretation of the provision is correct exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits
The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day
In the view I take all that Parliament could do under clause 7 a of article 22 was to dispense with an advisory board for the purpose contemplated in clause 4 a of that article and not to dispense with the proper machinery by whichever name it may be called for the purpose of examining the merits of the case of a detained person
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners
I cannot however easily subscribe to this sweeping statement
The article does provide for some mat ters of procedure but it does not exhaustively provide for them
It is said that it provides for notice an opportuni ty to the detenu to represent his case an advisory board which may deal with his case and for the maximum period beyond which a person cannot be detained
These points have undoubtedly been touched but it cannot be said that they have been exhaustively treated
The right to represent is given but it is left to the legislature to provide the machinery for dealing with the representation
The advisory board has been mentioned but 24 184 it is only to safeguard detention for a period longer than three months
There is ample latitude still left to the Parliament and if the Parliament makes use of that latitude unreasonably article 19 5 may enable the Court to see whether it has transgressed the limits of reasonableness
I will now proceed to deal with the Act in the light of the conclusions I have arrived at
So far as section 3 of the Act is concerned it was contended that it is most unreasonable because it throws a citizen at the mercy of certain authorities who may at their own will order his detention and into whose minds we cannot probe to see wheth er there is any foundation for the subjective satisfaction upon which their action is to rest
I am however unable to accept this argument
The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily be left to act on their own judgment
This principle is by no means unreasonable and it underlies all the preventive or quasi administrative measures which are to be found in the Criminal Procedure Code
Under section 107 of that code it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace
Under section 145 also his initial action depends upon his personal satisfaction
Therefore I do not find anything wrong or unconstitutional in section 3 of the Act
But I must point out that it is a reasonable provision only for the first step ie for arrest and initial detention and must be followed by some procedure for testing the so called subjective satisfaction which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds
I do not also find anything radically wrong in section 7 of the Act which makes it incumbent on the authority con cerned to communicate to a detenu the grounds on which the order has been made and to 185 afford him the earliest opportunity of making a representa tion against the order
Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with arti cle 22 4 a of the Constitution and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases
The real sections which appear to me to offend the Constitution are sections 12 and 14
I have already dealt with the principal objec tion to section 12 while discussing the provisions of article 22 7 a and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires
I also think that even if it be held that it technically complies with the requirements of article 22 7 a Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the Constitution has provided in normal cases
So far as section 14 is con cerned all my colleagues have held it to be ultra vires and as I agree with the views expressed by them I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them
Section 14 may be severable from the other provi sions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid
But I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been com plied with
This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law I have to add this qualification because there were allega tions of his being involved in some criminal cases but the actual facts were not clearly brought out before us
186 I have only to add a few concluding remarks to my judg ment
In studying the provisions of the impugned Act I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars
I could not also help noticing that the impugned Act purports to be a peacetime Act whereas the legislation to which I have referred was enacted during the war
During the first war as well as the second a number of persons were detained and a number of cases were brought to Court in connection with their detention but the two lead ing cases which will be quoted again and again are Rex vs Halliday 1 and Liversidge vs Sir John Anderson2
We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compen dionsly referred to as being included in war power
 The two English cases to which I have referred also illustrate the same principle as will appear from two short extracts which I wish to reproduce
In Rex vs Halliday 3 Lord Atkinson observed as follows   However precious the personal liberty of the subject may be there is something for which it may well be to some extent sacrificed by legal enactment namely national success in the  war or escape from national plunder or enslavement
 In Liversidge vs Sir John Anderson 4 Lord Macmillan struck the same note in these words  The liberty which we so justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged
At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country s cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention
 1 1917 AC260
3  271  4  at p 257 187 These passages represent the majority view in the two cases but the very elaborate judgments of Lord Shaw in Rex vs Halliday and that of Lord Atkin in Liversidge vs Sir John Anderson show that there
was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it
It is difficult to say that there is not a good substratum of sound law in the celebrat ed dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same lan guage in war as in peace
However that may be what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provi sion for an advisory board in all cases without any excep tion which provided a wartime safeguard for persons de prived of their liberty
There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made thereunder
I find that these reports were printed and made available to the public
I also find that the Secretary of State stated in the House of Commons on the 28th January 1943 that the general order would be to allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer
This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court
The impugned Act suffers in com parison on account of want of such provisions though so far as I can see no great harm was likely to have been caused by setting up a machinery composed of either adminis trative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice
The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is  expressly provided for
I find that there is a provision in section 12 2 of the Act for the review of the cases of detenus after six months but this is quite different 188 from examining the merits of the case
The object of such a review is obviously to find out whether by reason of any change in the circumstances a review of the original order is required
I hope that in pointing out the shortcomings of the Act I will not be misunderstood
I am aware that both in Eng land and in America and also in many other countries there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters
I also realize that those who run the State have very onerous responsibilities and it is not correct to say that emergent conditions have altogether disappeared from this country
Granting then that private rights must often be subordinated to the public good is it not essen tial in a free community to strike a just balance in the matter  That a person should be deprived of his personal liberty without a trial is a serious matter but the needs of society may demand it and the individual may often have to yield to those needs
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government
PATANJALI SASTRI J This is an application under arti cle 32 of the Constitution of India for releasing the petitioner from detention in jail without trial under directions purporting to be issued by the Government of Madras under the  and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner s right to freedom of movement
As the case involved issues of great public importance and breaking of new ground it was argued with thoroughness and ability on both sides reference being made to more or less analogous provisions of the Constitutions of 189 other countries and in particular the Constitution of the United States of America
The petitioner had been under detention previously under orders passed by the said Government under the Madras Main tenance of Public Order Act 1947 but as the validity of that Act and all other similar local public safety enact ments had been questioned in some of the High Courts in India after the new Constitution came into force the Par liament enacted a comprehensive measure called the Preven tive Detention Act 1950 hereinafter referred to as the impugned Act extending to the whole of India with a certain exception not material here
The Act came into force on 25th February 1950 and on the 27th February the Government of Madras in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders directed the detention of the petitioner and the order was served on him on 1st March
The petitioner contends that the impugned Act and in particular sections 3 7 10 11 19 13 and 14 thereof take away or abridge the fundamental right to freedom of movement in contravention of article 13 2 of the Constitu tion and is therefore void as declared therein
Article 13 is one of a fasciculus of articles which are comprised in part III of the Indian Constitution headed Fundamental Rights
 This Part forms a new feature of the Constitution and is the Indian Bill of Rights
 It is modelled on the first ten Amendments of the American Con stitution which declare the fundamental rights of the American citizen
Article 12 which is the first article in this Part defines the State as including the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights are enforceable and article 13 1 declares that all existing laws inconsistent with the provisions of Part III shall to the extent of the inconsistency be void
Clause 2 of the article on which the petitioner s con tention is primarily founded reads as follows 190 The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
 As the constitutional inhibition against deprivation or abridgement relates only to the rights conferred by this Part it is necessary first to ascertain the nature and extent of the right which according to the petitioner Part III has conferred on him and secondly to determine wheth er the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions
The first question turns on the proper interpretation of the relevant articles of the Constitution and the second involves the consideration of the provisions of the impugned Act
Mr Nambiar appearing for the petitioner advanced three main lines of argument
In the first place the right to move freely throughout the territory of India referred to in article 19 1d is of the very essence of personal liber ty and inasmuch as the detention authorised by the impugned Act was not a reasonable restriction which Parliament could validly impose on such right under clause 5 of the article the impugned Act is void
Alternatively the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law and the impugned Act by autho rising detention otherwise than in accordance with proper procedure took away that right and was therefore void
And lastly the provisions of the impugned Act already re ferred to were ultra vires and inoperative as Parliament in enacting them has overstepped the imitations placed on its legislative power by article 22 clauses 4 to 7
Accordingly the first question for consideration is whether article 19 1 d and 5 is applicable to the present case
Liberty says John Stuart Mill consists in doing what one desires
But the liberty  of the individual must be thus far limited he must not make him self a nuisance to others
 Man as a rational being desires to do many things but in a civil society his de sires have to be controlled regulated 191 and reconciled with the exercise of similar desires
by other individuals
Liberty has therefore to be limited in order to be effectively possessed
Accordingly article 19 while guaranteeing some of the most valued phases or elements of liberty to every citizen as civil1 rights pro vides for their regulation for the common good by the State imposing certain restrictions on their exercise
The power of locomotion is no doubt an essential element of personal liberty which means freedom from bodily restraint and detention in jail is a drastic invasion of that liberty
But the question is Does article 19 in its setting in Part III of the Constitution deal with the deprivation of per sonal liberty in the sense of incarceration  Sub clause d of clause 1 does not refer to freedom of movement simplic iter but guarantees the right to move freely throughout the territory of India Sub clause e similarly guaran tees the right to reside and settle in any part of the territory of India
And clause 5 authorises the imposi tion of reasonable restrictions on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe
Reading these provisions together it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which nar row minded provincialism may seek to interpose
The use of the word restrictions in the various sub clauses seems to imply in the context that the rights guaranteed by the article are still capable of being exercised and to exclude the idea of incarceration though the words restriction and deprivation are sometimes used as interchangeable terms as restriction may reach a point where it may well amount to deprivation
Read as a whole and viewed in its setting among the group of provisions articles 19 22 relating to Right to Freedom article 19 seems to my mind to pre suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum 192 of personal freedom on which alone the enjoyment of these rights necessarily rests
It was said that subclause f would militate against this view as the enjoyment of the right to acquire hold and dispose of property does not depend upon the owner retaining his personal freedom
This assumption is obviously wrong as regards moveable proper ties and even as regards immoveables he could not acquire or dispose of them from behind the prison bars nor could he hold them in the sense of exercising rights of possession and control over them which is what the word seems to mean in the context
But where as a penalty for committing a crime or otherwise the citizen is lawfully deprived of his freedom there could no longer be any ques tion of his exercising or enforcing the rights referred to in clause 1
Deprivation of personal liberty in such a situation is not in my opinion within the purview of article 19 at all but is dealt with by the succeeding arti cles 20 and 21
In other words article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free while articles 20 22 secure to all persons citizens and non citizens certain constitutional guarantees in regard to punishment and prevention of crime
Different criteria are provided by which to measure legisla tive judgments in the two fields and a construction which would bring within article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would as it seems to me make a reductio ad absurdum of that provision
If imprisonment were to be regarded as a restriction of the right mentioned in article 19 1d it would equally be a restriction on the rights mentioned by the other subclauses of clause 1 with the result that all penal laws providing for imprisonment as a mode of punish ment would have to run the gauntlet of clauses 2 to 6 before their validity could be accepted
For instancethe law which imprisons for theft would on that view fall to be justified under clause 2 as a law sanctioning restric tion of freedom of speech and expression
Indeed a Divi sion Bench of the Allahabad High Courtin a recent unreport ed decision brought to our notice 193 applied the test of undermining the security of the State or tending to overthrow it in determining the validity or otherwise of the impugned Act
The learned Judges construed article 19 as covering cases of deprivation of personal liberty and held logically enough that inasmuch as the impugned Act by authorising preventive detention infringed the right to freedom of speech and expression its validity should be judged by the reservations in clause 2 and as it failed to stand that test it was unconstitutional and void
Mr Nambiar did not seek to go so far
He drew a dis tinction between the right conferred by sub clause d and those conferred by the other sub clauses
He urged refer ring to Blackstone s Commentaries that personal liberty consisted in moving one s person to whatever place one s inclination might direct and that any law which de prived a person of such power of locomotion was a direct invasion of the right mentioned in sub clause d whereas it inter fered only indirectly and consequentially with the rights mentioned in the other sub Clauses
There is no substance in the distinction suggested
It would be illogi cal in construing article 19 to attribute to one of the sub clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc  tion between one right and another in the group
All the rights mentioned in clause 1 are equally essential elements in the liberty of the individual in any civilised and democrat ic community and imprison ment operates as an extinction of all of them alike
It cannot therefore be said that deprivation of personal liberty is an infringement of the right conferred by sub clause d alone but not of the others
The learned Judges of the Allahabad High Court realised this and were perfectly logical in holding that the constitutional validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause 5 of article 19 but also in the other clauses including clause 2 though their major premise that deprivation of personal liberty was a restriction within the meaning of article 19 is in my judgment erroneous
194 It was said that preventive detention being a drasic re striction of the right to move freely was in its pith and substance within article 19 1 d read with clause 5 and not within article 21 which deals with crime and its punishment and prevention
There is no room here in my opinion for the application of the rule of pith and sub stance
 As pointed out by the Privy Council in Prafulla Kumar Mukherjee vs The Bank of Commerce Ltd Khulna 1 approving the observations of the Federal Court in Subrah manyam Chettiar vs Muttuswamy Goundan 2 the rule was evolved by the Board for determining whether an impugned statute was in its true character legislation with respect to matters within the jurisdiction of one legislature or another in a scheme of divided legislative power
No such question arises here
What the Court has to ascertain is the true scope and meaning of article 19 in the context of Part III of the Constitution in order to decide whether depriva tion of personal liberty falls within that article and the pith and substance rule will be more misleading than helpful in the decision of that issue
Article 19 as I have already indicated guarantees protection for the more important civil liberties of citizens who are in the enjoyment of their freedom while at the same time laying down the re strictions which the legislature may properly impose on the exercise of such rights and it has nothing to do with deprivation of personal liberty or imprisonment which is dealt with by the succeeding three articles
There is also another consideration which points to the same conclusion
The Drafting Committee of the Constituent Assembly to whose Report reference was freely made by both sides during the argument recommended that the word liber ty should be qualified by the insertion of the word person al  before it for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13 now article 19
The acceptance of this suggestion shows that whatever may be the generally accepted 1 74 IA 23
2 1940 FCE 188
195 connotation of the expression personal liberty it was used in article 21 in a sense which excludes the freedoms dealt with in article 19 that is to say personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India
It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act
It is however to be ob served that article 19 confers the rights therein specified only on the citizens of India while article 21 extends the protection of life and personal liberty to all persons citizens and noncitizens alike
Thus the two articles do not operate in a conterminous field and this is one reason for rejecting the correlation suggested
Again if article 21 is to be understood as providing only proce dural safeguards where is the substantive right to personal liberty of non citizens to be found in the Constitution  Are they denied such right altogether  If they are to have no right of personal liberty why is the proce dural safeguard in article 21 exended to them  And where is that most fundamental right of all the right to life provided for in the Constitution  The truth is that arti cle 21 like its American prototype in the Fifth and Four teenth Amendments of the Constitution of the United States presents an example of the fusion of procedural and substan tive rights in the same provision
The right to live though the most fundamental of all is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law
Process or procedure in this context connotes both the act and the manner of proceeding to take away a man s life or per sonal liberty
And the first and essential step in a proce dure established by law for such deprivation must be a law made by a competent legislature 196 Authorising such deprivation
This brings me to the consid eration of articles 21 and 22 to which was deroted the greater part of the debate at the Bar
These articles run as follows 21
No person shall be deprived of his life or person al liberty except according to procedure established by law
1 No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
2 Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
3 Nothing in clauses 1 and 2 shall apply a to any person who for the time being is an enemy alien or b to any person who is arrested or detained under any law providing for preventive detention
4 No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention Provided that nothing in this sub clause shall  autho rise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub clause b of clause 7 or b such person is detained in accordance with the provisions of any law made by Parliament under sub clauses a and b of clause 7
197 5 When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
6 Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
7 Parliament may by law prescribe a the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub clause a of clause 4 Mr Nambiar urged that the word law in article 21 should be understood not in the sense of an enactment but as signifying the immutable and universal principles of natural justice the jus naturale of the civil law and that the expression procedure established by law meant the same thing as that famous phrase due process of law in the American Constitution in its procedural aspect
Numerous American decisions were cited to show that the phrase implied the basic requirements of 1 an objective and ascertainable standard of conduct to which it is possi ble to conform 2 notice to the party of the accusation against him 3 a reasonable opportunity for him to estab lish his innocence and 4 an impartial tribunal capable of giving an unbiased judgment Mr Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in 198 view as for instance in a case of preventive detention previous notice which might result in the person concerned going underground might be dispensed with Learned counsel insisted that these requirements being the very core of the principles of natural justice which transcended all State made laws must be substantially complied with by any law governing the process of deprivation of life or personal liberty subject of course to any express provision in the Constitution sanctioning their relaxation or dispensation in any case or class of cases
He also appealed to the Pream ble of the Constitution as the guiding star in its interpre tation to support his thesis that in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain funda mental rights which are justiciabke the provisions of Part III must be construed as being paramount to the legislative will as otherwise the socalled fundamental right to life and personal liberty would have no protection against legis lative action and article 13 12 would be rendered nugato ry
There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Pream ble adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality and in delegating to the legislature the executive and the judiciary their respective powers in the Constitution reserved to themselves certain fundamental rights socalled I apprehend because they have been re tained by the people and made paramount to the delegated powers as in the American model
Madison who played a prominent part in framing the First Amendment of the Ameri can Constitution pointing out the distinction due to historical reasons between the American and the British ways of securing the great and essential rights of the people observed Here they are secured not by laws para mount to prerogative but by Constitutions paramount to laws Report on the Virginia Resolutions quoted in Near vs Minnesota 1
1  109 This has been translated into positive law in Part III of the Indian Constitution and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind
This howev er is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment constitutional or other that its spirit no less than its intendment should be collected primarily from the natural meaning of the words used
Giving full effect to these principles however I am unable to agree that the term law in article 21 means the immutable and universal principles of natural justice Procedure established by law must be taken to refer to a procedure which has a statutory origin for no procedure is known or can be said to have been established by such vague and uncertain concepts as the immutable and universal principles of natural justice
 In my opinion law in article 21 means positive or State made law No doubt the American Judges have adopted the other connotation in their interpretation of the due process clause in the Fifth and Fourteenth Amendments of the Ameri can Constitution  Nor shall any person be deprived of life liberty or property without due process of law 
But that clause has an evolutionary history behind it
The phrase has been traced back to 28 Edw
III Ch 3 and Coke in his Institutes identified the term with the expression the law of the land in the Great Charter of John
Even in England where the legislative omnipotence of Parliament is now firmly established Coke understood these terms as implying an inherent limitation on all legislationand ruled in Dr Bonham s Case 1 that the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason Though this doctrine was later discarded in England as being a warning 1 a
26 200 rather than an authority to be followed per Willes J in Lee vs Dude and Torrington Ry
1 it gained ground m America at first as a weapon in the hands of the Revolu tionists with which to resist the laws of Parliament and later as an instrument in the hands of the Judges for estab lishing the supremacy of the judiciary see Calder vs Bull  
In the latter half of the 19th century this doc trine of a transcendental common law or natural justice was absorbed in the connotation of the phrase due process of law occurring in the Fifth and Fourteenth Amendments
By laying emphasis on the word due interpreting law as the fundamental principles of natural justice and giving the words liberty and property their widest meaning the Judges have made the due process clause into a general restriction on all legislative power
And when that power was threatened with prostration by the excesses of due process the equally vague and expansive doctrine of police power ie the power of Government to regulate private rights in public interest was evolved to counteract such excesses
All this has been criticised as introducing great uncertainty in the state of the law in that country for no one could be sure how due process of law would affect a particular enactment
A century after the phrase had been the subject of judicial interpretation one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascer tained by the gradual process of inclusion and exclusion Davidson vs New Orleans 3and as recently as 1948 another Judge referred to the difficulty of giving defi niteness to the vague contours of due process and of spinning judgment upon State action out of that gossamer concept Haley vs State of Ohio 4
It is not a matter for surprise therefore that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression except according to procedure 1  582
3 96 US 97  4 332 US 596
201 established by law taken from the Japanese Constitution 1946 for the words without due process of law which occurred in the original draft as the former is more specific
 In their Report the Committee added that they have attempted to make these rights fundamental rights and the limitations to which they must necessarily be subject as definite as possible since the Courts may have to pronounce upon them para 5
In the face of all these considerations it is difficult to accept the suggestion that law in
article 21 stands for the jus naturale of the civil law and that the phrase according to procedure established by law is equivalent to due process of law in its procedural aspect for that would have the effect of introducing into our Constitution those subtle and elusive criteria implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid
On the other hand the interpretation suggested by the Attorney General on behalf of the intervener that the ex pression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more accept able
Established according to him means prescribed and if Parliament or the Legislature of a State enacted a proce dure however novel and ineffective for affording the ac cused person a fair opportunity of defending himself it would be sufficient for depriving a person of his life or personal liberty
He submitted that the Constituent Assem bly definitely rejected the doctrine of judicial supremacy When it rejected the phrase due process of law and made the legislative will unchallengeable provided only some procedure was laid down
The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy the phrase procedure established by law must be construed in accordance with the English view of due process of law that is to say any procedure which Parliament may choose to prescribe
Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining as he put it the his torical background
 A speech 202 made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill
Nor is it reasonable to assume that the minds of all those legislators were in accord
The Court could only search for the objec tive intent of the legislature primarily in the words used in the enactment aided by such historical material as reports of statutory committees preambles etc
I attach no importance therefore to the speeches made by some of the members of the Constituent Assembly in the course of the debate on article 15 now article 21
The main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stultifies article 13 2 and indeed the very conception of a fundamental right
It is of the essence of that con ception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation
It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy
So far at any rate as Part III is concerned the Constitution as I have already observed has accepted the American view of funda mental rights
The provisions of articles 13 and 32 make this reasonably clear
Could it then have been the inten tion of the framers of the Constitution that the most impor tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as in effect they would be if established were to mean merely pre scribed  In other words as an American Judge said in a similar context does the constitutional prohibition in article 13 2 amount to no more than You shall not take away life or personal freedom unless you choose to take it away which is mere verbiage
It is no sound answer to say that if article 21 conferred no right immune from legisla tive invasion there would be no question of contravening article 13 2
The argument seems to my mind to beg the question for it assumes that the article affords no such immunity
It is said that article 21 affords no protection against competent legislative action in 203 the field of substantive criminal law for there is no provision for judicial review on the ground of reasonable ness or otherwise of such laws as in the case of the rights enumerated in article 19
Even assuming it to be so the construction of the learned Attorney
General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was un doubtedly designed to afford
It was argued that law in article 31 which provides that no person shall be deprived of his property save by authority of law must mean enacted law and that if a person s property could be taken away by legislative action his right to life and personal liberty need not enjoy any greater immunity
The analogy is mis leading
Clause 2 of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses 4 and 6 which are of a tran sitory character
The constitutional safeguard of the right to property in the said article is therefore not so illu sory or ineffective as clause 1 by itself might make it appear even assuming that law there means ordinary legis lation
Much reliance was placed on the Irish case The King vs The Military Governor of Hare Park Camp 1 where the Court held that the term law in article 6 of the Irish Constitu tion of 1922 which provides that the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law meant a law enacted by the Parliament and that therefore the Public Safety Act of 1924 did not contravene the Constitution
The Court followed The King vs Halliday2 where the House of Lords by a majority held that the Defence of the Realm Consolidation Act 1914 and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta for the simple reason that the Act and the Orders become part of the law of the land
 But that was because as Lord Dunedin pointed out the British Constitution has entrusted to the two Houses of parliament subject to the assent 1 19241 2 IR 104
2 1917 AC 260
204 of the King an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of funda mental rights and by providing for a judicial review of legislation in contravention of the Constitution article 65
This radical distinction was overlooked
The Attorney General further submitted that even on his interpretation article 21 would be a protection against violation of the rights by the executive and by individuals an d that would be sufficient justification for the article ranking as a fundamental safeguard
There is no substance in the suggestion
As pointed out in Eshugbayi Eleko vs Gov ernment of Nigeria Officer Administering 1 the execu tive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed
Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter
In accordance with British jurisprudence said Lord Atkin in the case cited above no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice
 As for protection against individuals it is a misconception to think that constitutional safeguards are directed against individuals
They are as a rule directed against the State and its organs
Protection against violation of the rights by individuals must be sought in the ordinary law
It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals
On the other handthe insertion of a declaration of Fundamental Rights in the forefront of the Constitution coupled with an express prohibition against legislative interference with these rights article 13 and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review article 32 is in my 1  205 opinion a clear and emphatic indication that these rights are to be paramount to ordinary State made laws
After giving the matter my most careful and anxious consideration I have come to the conclusion that there are only two possible solutions of the problem
In the first place a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word established which implies some degree of firmness permanence and general acceptance while it does not exclude origination by statute Procedure estab lished by law may well be taken to mean what the Privy Council referred to in King Emperor vs Benoari Lal Sharma 1 as the ordinary and well established criminal proce dure that is to say those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the coun try
Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor General and trial by ordinary Courts under the Criminal Procedure Code
It can be no objection to this view that the Code prescribes no single and uniform proce dure for all types of cases but provides varying procedures for different classes of cases
Certain basic principles emerge as the constant factors common to all those proce dures and they form the core of the procedure established by law
I realise that even on this view the life and liberty of the individual will not be immune from legisla tive interference for a competent legislature may change the procedure so as to whittle down the protection if so minded
But in the view I have indicated it must not be a change ad hoc for any special purpose or occasion but a change in the general law of procedure embodied in the Code
So long as such a change is not effected the protection under article 21 would be available
The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways 1 175
206 referred to above will perhaps be best illustrated by a concrete example
Suppose that article 22 1 was not there and Parliament passed an Act as a temporary measure taking away in certain cases the right of an accused person to be defended by a legal practitioner
According to the petition er s learned counsel the Act would be void as being contrary to the immutable principles of natural justice embodied in article 21 whereas on the construction contended for by the Attorney General the Act would be perfectly valid while on the view I have indicated above the Act would be bad but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abro gating section 340 1of the Code article 21 would be powerless to protect against such legislative action
But in a free democratic republic such a drastic change in the normal law of procedure though theoretically possi ble would be difficult to bring about and that practical difficulty will be the measure of the protection afforded by article 21
It was said that the safeguards provided in clauses 1 and 2 of article 22 are more or less covered by the provisions of the Criminal Procedure  Code and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above
The argument overlooks that while the provisions of the Code would be liable to alteration by competent legislative action the safeguards in clauses 1and 2 of article 22 being constitutional could not be similarly dealt with and this sufficiently explains why those safeguards find a place in the Constitution
The only alternative to the construction I have indi cated above if a constitutional transgression is to be avoided would be to interpret the reference to law as implying a constitutional amendment pro tanto for it is only a law enacted by the procedure provided for such amend ment article 368 that could modify or override a fundamen tal right without contravening article 13 2
207 The question next arises as to how far the protection under article 21 such as it has been found to be is avail able to persons under preventive detention
The learned Attorney General contended that article 21 did not apply to preventive detention at all as article 22 clauses 4 to 7 formed a complete code of constitutional safeguards in respect of preventive detentionand provided only these provisions are conformed to the validity of any law relat ing to preventive detention could not be challenged
I am unable to agree with this view
The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration both for punitive and preventive reasons
If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention nothing would have been easier than to add a reference to article 21 in clause 3 of article 22 which provides that clauses 1 and 2 of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses 4 to 7 of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention
These clauses deal only with certain aspects of preventive deten tion such as the duration of such detention the constitu tion of an advisory board for reviewing the order of deten tion in certain cases the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order
It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven tive detention and cover the entire area of protection which article 21 interpretedin the sense I have indicated above would afford to the person detained
I am therefore of opinion that article 21 is applicable to preventive deten tion as well
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained takes away any of the rights con ferred by articles 21 and 22 or infringes the protection afforded thereby
The 208 outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status
This sinister looking feature so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti sOcial and subversive elements which might imperil the national welfare of the infant Republic
It is in this spirit that clauses 3 to 7 of article 22 should in my opinion be con strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty
In the first place as already stated clause 3 of article 22 excludes a person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses 1 and 2 No doubt clause 5 of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order but the important right to consult and to be defended by a legal practitioner of his choice is gone
Similarly the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention
It was not disputed that to the extent to which the express provisions of clauses 4 to 7 authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form those express provisions must rule
Of the four essentials of the due process on which Mr Nambiar insisted which also form part of the ordinary and established procedure under the Criminal Procedure Code though I cannot agree that they are immutable and beyond legislative change the requirements of notice and an opportunity to establish his innocence must as already stated be taken to have 209 been provided for by clause 5of article 22
As for an ascertainable standard of conduct to which it is possible to conform article 22 makes no specific provision in cases of preventive detention and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases it could no doubt be invoked
This point will be considered presently in dealing with provisions of the impugned Act
The only other essential requirement and the most essen tial of all is an impartial tribunal capable of giving an unbiassed verdict
This Mr Nambiar submitted was left unprovided for by article 22 the advisory board referred to in clause 4 a being according to him intended to deal solely with the question of duration of the detention that is to say whether or not there was sufficient cause for detaining the person concerned for more than three months and not with judging whether the person detained was innocent
A tribunal which could give an unbiassed judg ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret ed and reference was made in this connection to the preven tive provisions of the Criminal Procedure Code Ch VIII
The impugned Act not having provided for such a tribunal contravened article 21 and was therefore void
It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause 4 a of article 22 is not a tribunal intended to deal with the issue of justification of detention
Is that view correct It was argued that the words sufficient cause for such detention in sub clause a of clause 4 had reference to the detention beyond three months mentioned in clause 4 and that this view was supported by the language of sub clause a of clause 7 whereby Parliament is authorised to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board
In other words learned counsel submitted 210 the combined effect of clauses 4 and 7 was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period except in cases where Parliament passed a law autho rising detention for such period even without the opinion of an advisory board
Thus these two clauses were concerned solely with the duration of the preventive detention and so was the advisory board which those clauses provided for that purpose
I am unable to accept this view
I am inclined to think that the words such detention in sub clause a refer back to the preventive detention mentioned in clause 4 and not to detention for a longer period than three months
An advisory board composed as it has to be of Judges or lawyers would hardly be in a position to judge how long a person under preventive detention say for reasons connected with defence should be detained
That must be a matter for the executive authorities the Depart ment of Defence to determine as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point
All that an advisory board can reasonably be asked to do as a safeguard against the misuse of the power is to judge whether the detention is justified and not arbitrary or mala fide
The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period
Before any such tribunal could send in its report a reasonable time must elapse as the grounds have to be communicated to the person detained he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel
Each of these steps may in the course Of official routine take some time and three months  period might well have been thought a reasonable period to allow before the board could be required to submit its report
211 Assuming however that the words such detention had reference to the period of detention there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not
Indeed if is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all
I am of opinion that the advisory board referred to in clause 4 is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained
This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof and I think it is the correct view
It follows that the petitioner cannot claim to have his case judged by any other impartial tribu nal by virtue of article 21 or otherwise
Mr Nambiar however objected that on this view a law could authorise preventive detention for three months with out providing for review by any tribunal and for even longer periods if Parliament passed an Act such as is con templated in sub clause a of clause 7
That may be so but however deplorable such a result may be from the point of view of the person detained there could be no remedy if on a proper construction of clauses 4 and 7 the Consti tution is found to afford no higher protection for the personal liberty of the individual
Turning next to the provisions of the impugned Act whose constitutional validity was challenged it will be necessary to consider only those provisions which affect the petitioner before us
In the first place it was contended that section 3 which empowers the Central Government or the State Government to detain any person if it is satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to among other 212 things the security of the State or the maintenance of public order cannot be said to comply with the procedure established by law as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform but leaves it to the will and pleasure of the Government concerned to make an order of detention
TIm argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law
I have already endeavoured to show that it is not Apart from this the argument overlooks that for the purposes of preventive detention it would be difficult if not impossi ble to lay down objective rules of conduct failure to conform to which should lead to such detention
As tim very term implies the detention in such cases is effected with a view to prevent the person concerned from acting prejudi cially to certain objects which the legislation providing for such detention has in view
Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial
The responsibility for the security of the State and the maintenance of public order etc
having been laid on the executive Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occa sion demands it
Section 12 came in for a good deal of criticism
That section which governs the duration of thepetitioner s detention reads as follows  Duration of detention in certain cases
Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of his detention namely where such person has been detained with a view to preventing him from acting in any manner prejudicial to a the defence of India relations of India with for eign powers or the security of India or b the security of a State of the maintenance of public order
213 2 The case of every person detained under a detention order to which the provisions of sub section 1 apply shall within a period of six months from the date of his detention be reviewed where the order was made by the Central Government or a State Government by such Govern ment and where the order was made by any officer specified in sub section 2of section 3 by the State Government to which such officer is subordinate in consultation with a person who is or has been or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government as the case may be
 It was urged that this did not comply with the require ments of clause 7 of article 22 as it merely repeated the matters or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution
What Parliament has to do under clause7 of article 22 is to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an advisory board
It was said that clause 4 a provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board whereas clause 7 a made provision for special cases of detention for more than three months with out the safeguard of the advisory board s opinion for aggravated forms of prejudicial conduct
In other words clause 4 a laid down the rule and clause 7 a enacted an exception
It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause 7
There is a two fold fallacy in 214 this argument
In the first place the suggested correla tion between clause 4 a and clause 7 a as enacting a rule and an exception is as a matter of construction without foundation
Reading clauses 4 and 7 together it is reasonably clear that preventive detention could last longer in two cases 1 where the opinion of an advisory board is obtained subject however to a prescribed period sub clause aof clause 4 and 2 where a person is detained under a law made by Parliament under sub clauses a and b of clause 7 sub clause b of clause 4
These are two distinct and independent provisions
It is significant that sub clause b of clause 4 is not worded as a proviso or an exception to sub clause a of the same clause as it would have been if it was intended to operate as such
The attempt to correlate clause 4aand clause 7 a as a rule and an exception respectively is opposed both to the language and the structure of those clauses Secondly the argument loses sight of the fact that clause 7 deals with preventive detention which is a purely precautionary measure which must necessarily proceed in all cases to some extent on suspicion or anticipation as distinct from proof  per Lord Atkinson in Rex vs Halliday 1 
The remarks I have  already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12
It would be difficult if not impracticable to mention the variouscircumstances or to enumerate the various class es of cases exhaustively in which a person should be de tained for more than three months for preventive purposes except in broad outline
Suppose a person belongs to
an organization pledged to violent and subversive activity as its policy
Beyond his membership of theparty the person might have done nothing until he1 was arrested and detained
But if released he might indulge in anything from the mild est form of prejudicial activity like sticking an objec tionable handbill on a hoarding to the most outrageous acts of sabotage
1   275 215 How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities or the enumeration of the various circumstances in which such activities are likely to be indulged in be of any assist ance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period  All that would be necessary and suffi cient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or in other words he belongs to class b in section 12
While enumeration and classification in detail would un doubtedly help in grading punishment for offences committed they would not be of much use in fixing the duration of preventive detention
Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in and that in effect is what Parliament has done in sec tion 12
Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act 1939 where prejudicial act is defined by enumeration
But it was also for the purpose of prohibiting such acts  Rule 38 sub rule 1  and making them offences sub rule 5
And even there the definition had to end in a residuary clause sweeping in acts likely to prejudice the efficient prosecution of the war the defence of British India or the public safety or interest
 In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised
I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable
A class can well be designated with refer ence to the end which one desires to secure and the matters referred to as classes a 216 and b of sub section 1 of section 12 being clearly the objects which Parliament desired to secure by enacting the section it seems to me that the classification with refer ence to such general aims does not contravene article 22 7
It was argued that Parliament did not in enacting section 12 perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board s opinion could be for a period longer than three months
The use of the disjunctive or between the word circumstances and the words class or classes of cases showed it was said that Parliament proceeded on the view that it need not prescribe both
This was in contravention of article 22 7 which used the con junctive and between those words
There is no substance in this objection
As I read article 22 7 it means that Parliament may prescribe either the circumstances or the classes of cases or both and in enacting section 12 Parliament evidently regarded the matters mentioned in clause a and b of sub section 1 as sufficiently indic ative both of the Circumstances under which and the classes in which a person could be detained for the longer period
To say for instance that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to prescribe a class of persons in which and the circumstances under which a person may be detained for the longer period
In other words the classi fication itself may be such as to amount to a sufficient description of the circumstances for purposes of clause 7
The circumstances which would justify precautionary deten tion beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration and it can in my judgment be no objection to the validity of section 12 that no circum stances are mentioned apart from the matters referred to in clauses a and b of sub section 1
It would indeed be singular for the Court to strike down a parliamentary enact ment because in its opinion a 217 certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inade quate
Lastly Mr Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representa tion made by him against the order of detention and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub section 2 which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be
The petitioner com plains that this provision nullifies in effect the rights conferred upon him under clause 5 of article 22 which entitles him to have the grounds of his detention communi cated to him and to make a representation against the order
If the grounds are too vague to enable him to make any such representation or if they are altogether irrelevant to the object of his detention or are such as to show that his detention is not bona fide he has the further right of moving this Court and this remedy is also guaranteed to him under article 32
These rights and remedies the petitioner submits cannot be effectively excercised if he is prevent ed on pain of prosecution from disclosing the grounds to the Court
There is great force in this contention
All that the Attorney General could say in answer was that if the other provisions of the Act were held to be valid it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was satisfied that detention was necessary as laid down in Machindar Shivaji Mahar vs The King 1 and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence
The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had 1 218 in view such as for instance the prevention of acts prejudicial to public safety and tranquillity or were such as to show that the detention was not bona fide
An examina tion of the grounds for these purposes is made impossible by section 14 and the protection afforded by article 22 5 and article 32 is thereby rendered nugatory
It follows that section 14 contravenes the provisions of article 22 5 and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the repre sentation made by him against the order of detention and prevents the Court from examining them for the purposes aforesaid and to that extent it must be held under article 13 2 to be void
This however does not affect the rest of the Act which is severable
As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy if so advised on the basis of those grounds
In the result the application fails and is dismissed
MAHAJAN J
The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950
This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country
AK Gopalan the petitioner who was already under the custody of the Superintendent Central Jail Cuddalore was served with an order of detention under section 3 1 of the Act IV of 1950 on the 27th February 1950
It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order
On 20th March 1950 a petition was presented to this Court under article 32 219 of the Constitution praying for the issue of a writ of habeas corpus directing the State of Madras to produce him before the Court and to set him at liberty
A writ was accordingly issued
The return to the writ is that the detention is legal under Act IV of 1950 enacted by Parlia ment
The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside the constitutional limits of the legis lature and therefore void and unenforceable
The matter is one of great importance both be cause the legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of the citizen is seriously affected
The decision of the question whether Act IV of 1950 takes away or abridges the rights conferred by Part III of the Constitution depends on a consideration of two points 1 In what measure has the Constitution secured person al liberty to a citizen of India and
2 has the impugned legislation in any way taken away or abridged the rights so secured and if so to what extent  Act IV of 1950 provides for preventive detention in certain cases and it has been enacted as a temporary meas ure
It will cease to have effect on 1st April 1951
It empowers the Central Government and the State Governments to make an order directing a person to be detained with a view to preventing him from acting in any manner prejudicial to the defence of India the relations of India with foreign powers or the security of India
It also gives power to detain a person who acts in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community
It came into force on 26th February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause 7 of Part III of the Constitution read with the entries in the 7th Schedule
There can be no doubt that the legislative will expressed herein 220 would be enforceable unless the legislature has failed to keep within its constitutional limits
It is quite obvious that the Court cannot declare a statute unconstitutional and void simply on the ground of unjust and oppressive provi sions or because it is supposed to violate natural social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution
It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words
It is difficult on any general principles to limit the omnipo tence of the sovereign legislative power by judicial inter position except in so far as the express words of a written Constitution give that authority
Article 13 2 of our Constitution gives such an authority and to the extent stated therein
It says that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world
It was stated at the Bar that no such law was in force in the United States of America
In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities
The same thing happened during thesecond world war
Similar regulations were introduced during the period of the war in India under the Defence of India Act
The Government of India Act 1935 conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country
Curiously enough this subject has found place in the Constitution in the
221 chapter on Fundamental Rights
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic
The jurisdiction however to enact these laws is subject to the provisions of Part III of the Constitu tion
Article 22 in this Part provides  1  No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
2 Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
3 Nothing in clauses 1 and 2 shall apply a to any person who for the time being is an enemy alien or b to any person who is arrested or detained under any law providing for preventive detention
4 No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period pre scribed by any law made by Parliament under sub clause b of clause 7 or b such person is detained in accordance with the provisions of any law made by Parliament under sub clauses a and b of clause 7
5 When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
6 Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose 7 parliament may by law prescribe a the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub clause a of clause 4
 The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention
The benefit of reasona ble doubt has to be resolved in favour of legislative ac tion though such a presumption is not conclusive It seems that the subject of preventive detention became the particu lar concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic
Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution
223 Though the Constitution has recognized the necessity of laws as to preventive detention it has also provided certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on this subject
These are 1 That no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an advisory board within the said period of three months
This provision limits legislative power in the matter of duration of the period of detention
A law of preventive detention would be void if it permits detention for a longer period than three months without the intervention of an advisory board
2 That a State law cannot authorize detention beyond the maximum period prescribed by Parliament under the powers given to it in clause 7
This is a limitation on the legislative power of the State legislature
They cannot make a law authorizing preventive detention for a longer period than that fixed by Parliament
3 That Parliament also cannot make a law authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause 7 of article 22
Provision also has been made to enable Parliament to make laws for procedure to be followed by advisory boards
This is a safeguard against any arbitrary form of procedure that may otherwise find place in State laws
Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause 5 of article 22
A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention
This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non existence of an advisory board
No machinery however has been provided or expressly 29 224 mentioned for dealing with this representation
It seems to me that when a constitutional right has been conferred as a necessary consequence a constitutional remedy for obtaining redress in case of infringement of the right must be pre sumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage
Consideration of the representation made by virtue of clause 5 by an unbiassed authority is m my opinion a necessary consequence of the guaranteed right contained herein
The right has been conferred to enable a detained person to establish his innocence and to secure justice and no jus tice can be said to be secured unless the representation is considered by some impartial person
The interpretation that I am inclined to place on clause 5 of article 22 is justi fied by the solemn words of the declaration contained in the Preamble to the Constitution
It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people of this country may well be proud
This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assem bly
Any interpretation of the provisions of Part III of the Constitution without reference to this solemn declara tion is apt to lead one into error
If the right of repre sentation given to a detained person by clause 5 of arti cle 22 is a guaranteed right and has been given for the purpose of securing justice then it follows that no justice can be held secured to him unless an unbiassed person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained
In my view the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiassed mind and will render justice
That would in a way make the prosecu tor a judge in the case and such a procedure is repugnant
to all notions 225 of justice
The Constitution has further curtailed the rights given in clause 5 by providing in clause 6 a privilege on the detaining authority of witholding facts which the said authority considers not in public interests to disclose
This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself but in view of these stringent provi sions no additional clogs can be put on the proper consider ation of the representation of the detained person by pre suming that the detaining authority itself will properly consider the representation
It has also to be remembered in this context that a person subjected to the law of pre ventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive deten tion vide clauses 1 and 2 of article 22
He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate
Having examined the provisions of article 22 I now proceed to consider the first question that was canvassed before us by the learned Attorney General ie that arti cle 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention and that being so the other articles of Part III could not be invoked in the consideration of the validity of the impugne d statute
It was conceded by the learned coun sel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III
It was however urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application namely articles 10 and 21 and to that extent laws made on this subject were justiciable
In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self contained a clear indication of such an intention has to be gathered
If the provisions embodied in this article have dealt 226 with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention the inference of such an indica tion would be irresistible
Ordinarily when a subject is expressly dealt with in a constitution in some detail it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere
Express mention of one thing is an exclusion of the other
Expressio unius est exclusio alterius
I am satisfied on a review of the whole scheme of the Constitu tion that the intention was to make article 22 self con tained in respect of the laws on the subject of preventive detention
It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part
It was said that they were all supplementary to one another
In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution
This article provides that no person shall be deprived of life or liberty  except according to procedure established by law
It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void
Conceding for the sake of argument but without expressing any opinion on it  that this contention of the learned counsel is correct the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention
In my opinion sub clause 5 of article 22 read with clauses 1 and 2 leads to the inference that the contention raised by the learned counsel is unsound
Clause 5 as already stated provides that notice has to be given to a detenu of the grounds of his detention
It also provides a limited hearing inasmuch as it gives him an opportunity to 227 establish his innocence
As in my opinion the considera tion of a representation made by a detained person by an unbiassed authority is implicit in clause 5 it gives to the detained person all that he is entitled to under the principles of natural justice
The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the Constitu tion
He is also denied an opportunity of appearing before a magistrate
When the Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually pro vided for in judicial proceedings
Clause 6 of article 22 very strongly supports this conclusion
There would have been no point in laying down such detailed rules of proce dure in respect of a law of preventive detention if the intention was that such a law would be subject to the provi sions of article 21 of the Constitution
In its ultimate analysis the argument of the learned counsel for the peti tioner resolves itself to this that the impugned statute does not provide for an impartial tribunal for a considera tion of the representation of the detained person and to this extent it contravenes article 21 of the Constitution
As discussed above in ray opinion such a provision is implicit within article 22 itself and that being so the application of article 21 to a law made under article 22 is excluded
It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19 1 d and that being so by reason of the provisions of sub clause 5 of article 19 it was justiciable on the ground of reasonableness
It is true as already pointed out that a law of preventive detention is wholly incompati ble with the right of freedom of movement of a citizen
Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19 1 d but it cannot be said that it merely restricts it
Be that as it may the 228 question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22
Article 19 5 is a saving and an enabling provision
It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22 7 is auother enabling provision empower ing Parliament to make a law on the subject of preventive detention in certain circumstances
If a law conforms to the conditions laid down in article 22 7 it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19 5
One enabling provision cannot be considered as a safeguard against another enabling provision
Article 13 2 has absolutely no application in such a situation
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness then it would not have trou bled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide
Some of the provisions of article 22 would then have been redun dant for instance the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board
This provi sion negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justiciable on the ground of reason ableness
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to conform to certain conditions
This provision would have  been unnec essary in article 22 if a law on this subject was justicia ble
In sub clause b of clause 7 of article 22 provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the sub ject of preventive detention
Under 229 this express provision it is open to Parliament to fix any period say even a period of five to ten years as the maximum period of detention of a person
Can it be said that in view of this express provision of the Constitution such a law was intended to be justiciable by reason of article 19 5  Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19 5 but this has been expressly excluded by express provisions in article 22
In my judgment therefore an examination of the provisions of article 22 clearly suggests that the intention was to make it self contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be exam ined or controlled either by the provisions of article 21 or by the provisions of article 19 5 because article 13 2 has no application to such a situation and article 22 is not subject to the provisions of these two articles
The Consti tution in article 22 has gone to the extent of even provid ing that Parliament may by law lay down the procedure to be followed by an advisory board
On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so the only correct approach in examining the validi ty of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative then the law will be valid but if the answer is in the negative the law would be void
In expressing the view that article 22 is in a sense self contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21
Article 21 in my opinion
lays down sub stantive law as giving protection to life and liberty inas much as it says that they cannot be deprived except accord ing to the procedure established by law in other words it means that before a person can be deprived of his life or liberty 230 as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such depriva tion
This article gives complete  immunity against the exercise of despotic power by the executive
It further gives immunity against invalid laws which contravene the Constitution
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty
It negatives the idea of fantastic arbitrary and oppressive forms of proceedings
The principles there fore underlying article 21 have been kept in view in draft ing article 22
A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21 and that being so there is no conflict between these two articles
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitu tion
The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made satisfaction of the Government as the criterion for de taining a person
It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behaviour was expected of them the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudi cial to the security of the State or the maintenance of  public order in other words it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was prejudicial to the security of the State etc
This criticism of the learned counsel in my opinion is not valid It is no doubt true that a detention order depends on the satisfac tion of the  231 Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority
By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order
The whole intent and purpose of the law of preventive detention would be defeated if satis faction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure
In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc
and the maintenance of public order
These are subjects which concern the life and the very existence of the State
Every citizen is presumed to know what behaviour is prejudicial to the life of the State or to its existence as an ordered State
Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men it cannot be said that in making satisfaction of the government as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub clause 5 and enacts that representation has to be made to the Central or State Gov ernment as the case may be
It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation
To this extent as already indicated the law is defective
In the absence of a machinery for the investigation of the conten tions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief
It is however unnecessary to express any opin ion as to the precise remedy open to a detained person in this respect
The absence of a provision of this nature in the statute however would not make the law wholly void
Section 9 of the Act makes reference 30 232 to the advisory board obligatory in cases falling under sub clause iii of clause a or clause b of sub section 1 of section a within six weeks of the order
The proce dure to be followed by the advisory board is laid down in section 10
Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub clause c of clause 7
It was contended that the law had not provided a personal hearing to the detenu before an advisory board nor had it given him a right to lead evi dence to establish his innocence
In my opinion this criticism is not sound and does not in any way invalidate the law
The advisory board has been given the power to call for such information as it requires even from the person detained
It has also been empowered to examine the materi al placed before it in the light of the facts and arguments contained in the representation
The opportunity afforded is not as full as a person gets under normal judicial proce dure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases then the validity of the law on that subject cannot be impugned on the grounds contended for
Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period
This section in my opinion has to be read in the background of the provision in sub clause 3 of section 1 of the Act which says that the Act will cease to have effect on 1st April 1951
Besides the words for such period as it thinks fit do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive deten tion
It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board
In my opinion there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature
233 It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently
This section is of a very controversial character
It has been enacted on the authority of clause 7 of article 22 and runs thus  1 Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceed ing one year from the date of his detention namely where such person has been detained with a view to preventing him from acting in any manner prejudicial to a the defence of India relations of India with for eign powers or the security of India or b the security of a State or the maintenance of public order
2 The case of every person detained under a detention order to which the provisions of sub section 1 apply shall within a period of six months from the date of his detention be reviewed where the order was made by the Central Government or a State Government by such Govern ment and where the order was made by any officer specified in sub section 2 of section a by the State Government to which such officer is subordinate in consultation with a person who is or has been or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government as the case may be The section purports to comply with the conditions laid down in clause 7 of article 22
It was however argued that in substance and reality it has failed to comply with any of the conditions laid down therein that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted
The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the class es of cases in which authority was conferred by clause 7 234 to dispense with an advisory board
So far as I have been able to gather from opinions of text book writers on the subject of classification the rule seems clear that in making classification of cases there has to be some rela tionship to the classification to the objects sought to be accomplished
The question for consideration therefore is what object was sought to be accomplished when the Constitu tion included clause 7 in article 22
It seems clear that the real purpose of clause 7 was to provide for a contin gency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention
In my opinion it was incorporated in the Constitution to meet abnormal and exceptional cases the cases being of a kind where an advisory board could not be taken into confidence
The authority to make such drastic legislation was entrusted to the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done
The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months
In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribu nal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged
The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause 7
If the peculiarity lies in a situation outside the control or view of a de tained person then it may be said that the description of such a situation would 235 amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board 
If however the abnormality relates to the conduct and character of the activities of a certain determinable group of persons then that would amount to a class of cases which was contemplated to be dealt with under clause 7
In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months
It was argued by the learned counsel for the petitioner that the phrase circumstances under which and the classes of cases in which used in clause 7 had to be construed in a cumulative sense on the other hand the learned Attorney General contended that the word and had been used in this clause in the same sense as or He further argued that even if the word and is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board
In Full Bench Reference No 1 of 1950 Das Gupta J of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention author izing detention for a longer period than three months with out the intervention of an advisory board had to fulfil both the requirements laid down in clause 7 and not only one of the requirements in the alternative
The same view has been expressed by my brother Sir Fazl Ali
I share this view with him
I would however like to consider this matter from a different aspect on the assumption that the contention raised by the learned Attorney General is right
Dealing first with the question whether section 12 mentions any circumstances so far as I have been able to see it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State maintenance of public order etc
are both the circumstances as well as 236 the classes of cases
In my opinion this line of approach cannot be held to be correct in the construction of clause 7 of article 22
I am inclined to agree with the learned Attorney General that the phrase circumstances under which means some situation extraneous to the detenu s own acts in other words it means some happening in the country with which the detenu is not concerned such as a situation of tense communal feelings an apprehended internal rebellion or disorder the crisis of an impending war or apprehended war etc
In such a situation the machinery of an advisory board could be dispensed with because it may become cumber some or it may hamper the exercise of necessary powers
In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12 though the section ostensibly says so
If it was permissible to con jecture it seems that the draftsman of section 12  repeated the words of clause  7 of article 22 without an applica tion of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situa tion it suffers from the defects which all hasty legisla tion suffer from
I now proceed to consider whether section 12 has classi fied the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board
The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases
The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be  made under the 7th Schedule amounts to a classification of cases as contemplated in clause 7 of article 22
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects  1 Defence of India 2 Foreign Affairs a Security of India 4 Security of the State 5 Mainten 237 ance of public order 6 Maintenance of supplies and serv ices essential to the community
Clause 4 of article 22 enjoins in respect of all the six subjects that no law can provide for preventive deten tion for a longer period than three months without reference to an advisory board
Clause 7 gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made
The legis lative authority under clauses 4 and 7in my opinion extends to all these six subjects
The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub clause 4 The extraordinary and unusual procedure was intended to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause 7
It seems to me however that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution
By this section Act IV of 1950 has dispensed with the advisory board in five out of the six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause 4 of article 22 has been relegated to one out of these six sub jects
This has been achieved by giving a construction to the phrase circumstances under which and the classes of cases in which so as to make it co extensive and cotermi nous with the subjects of legislation
 In my opinion this construction of clause 7 is in contravention of the clear provisions of article 22 and makes clause 4 of article 92 to all intents and purposes nugatory
Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that Parliament if it so chooses can do so in respect of all or any of the subjects mentioned in the legislative field
If that was so it would have been wholly unnecessary to provide such a safe guard in the Constitution on a matter 238 which very seriously affects personal liberty
On the other hand it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with that being necessary in the interests of the State
On the other construction as adopted by the framers of section 12 the Constitution need not have troubled itself by con ferring an authority on Parliament for making such a law
Moreover if that was the intention it would have in very clear words indicated this by drafting article 22 clause 4 thus Unless otherwise provided by Parliament no law provid ing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention
 The words Unless otherwise provided for by Parliament would have been in accord with the construction which the framers of section 12 have placed on article 22 clause 7
I am further of the opinion that the construction placed by the learned Attorney General on clause 7 of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation
The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community
This subject has been put under section 9 in Act IV of 1950
Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against cer tain persons
According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory while on the other hand if there is an appre hension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi then detention beyond three 239 months can be ordered without reference to an advisory board
Could such an anomalous result be in the contempla tion of the framers of the Constitution  The construction that I am inclined to place on the section is in accord with the scheme of the law of punitive detention
Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention
The cases on the subject have been classified in different groups namely simple hurt grievous hurt grievous hurt with dangerous weapons grievous hurt to extort a confession grievous hurt to restrain a public officer from doing his duty grievous hurt by a rash act and grievous hurt on provocation
Even simple hurt has been classified in different categories
The sub ject of assault has also been similarly dealt with
Sections 352 to 356 deal with cases classified according to the gravity of the offence ie cases of simple assault assault on a public servant assault on women assault in attempt to commit theft assault for wrongfully confining a person and assault on grave provocation have been separately grouped
Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110
These deal with different groups of persons vagrants are in one class habitual offenders in another bad characters in the third and disturbers of peace in the fourth
It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament but this has not been done
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act detention for a period of three months in ordinary cases detention for a longer period than three months with the intervention of an adviso ry board in more serious cases while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations
It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same 240 duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment
It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is whether it was in this comprehensive sense that classifica tion was intended by the Constitution in clause 7 or was it intended in a narrower and restricted sense  It has to be remembered that the law under clause 7 was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of con struction of statutes
The wide construction of clause 7 of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen
This could never have been the inten tion of the framers of the Constitution
The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demar cating certain portions out of each subject which requires severe treatment
If I may say so m conclusion section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds
Such a classification could not have been in the thoughts of the Constitution makers when clause 7 was introduced in article 22
For the reasons given above I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause 7 of article 22 of the Constitution and is not a law which falls within the ambit of that clause
That being so this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified
There is no other provision in 241 this law under which he can be detained for any period whatsoever
It was argued that it was neither practicable nor possi ble to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India
This contention to my mind is not sound
Such a classifica tion was made in the rules under the Defence of India Act by defining a prejudicial act in regulation 34
Mere difficulty in precisely ascertaining the groups or in defin ing objectively the conduct of such groups is no ground for not complying with the clear provisions of the statute or for disobeying it
I see no difficulty whatsoever if a serious effort was made to comply with the provisions of clause 7
I cannot see that the compulsory requirement of an advisory board is likely to lead to such disastrous or calamitous results that in all cases or at least in five out of the six subjects of legislation it becomes necessary to dispense with this requirement
The requirement of an advi sory board is in accordance with the preamble of the Consti tution and is the barest minimum that can make a law of preventive detention to some little degree tolerable to a democratic Constitution
Such a law also may have some justification even without the requirement of an advisory board to meet certain defined dangerous situations or to deal with a class of people who are a danger to the State but without such limitation the law would be destructive of all notions of personal liberty
The Constitution must be taken to have furnished an adequate safeguard to its citi zens when it laid down certain conditions in clause 7 and it could not be considered that it provided no safeguard to them at all and that the words used in clause 7 were merely illusory and had no real meaning
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 5 and 32 of the Constitution
This section is in these terms 242 1 No Court shall except for the purposes of a prose cution for an offence punishable under subsection 2 allow any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order and notwithstanding anything con tained in any other law no Court shall be entitled to require any public officer to produce before it or to disclose the substance of any such communication or repre sentation made or the proceedings of an advisory board or that part of the report of an advisory board which is confi dential
2 It shall be an offence punishable with imprisonment for a term which may extend to one year or with fine or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government as the case may be any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section 1 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order
 This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention
The Constitution has guaranteed to the detained person the right to be told the grounds of detention
He has been given a right to make a representation vide arti cle 22 5 yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representa tion made by him in a Court of law and makes a breach of this injunction punishable with imprisonment
Article 32 1 of the Constitution is in these terms  The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
 243 Sub section 4 says  The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu tion Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of the six subjects mentioned in the 7th Schedule this Court can always declare the detention illegal and release the detenu but it is not possible for this Court to func tion if there is a prohibition against disclosing the grounds which have been served upon him
It is only by an examination of the grounds that it is possible to say wheth er the grounds fall within the ambit of the legislative power contained in the Constitution or are outside its scope
Again something may be served on the detenu as being grounds which are not grounds at all
In this contingency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22 5 that he be given the real grounds on which the detention order is based
This Court would be disabled from exercis ing its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub clause if it is not open to it to see the grounds that have been furnished
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention
This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material
The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence
In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds
Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not 244 to permit the disclosure of such grounds
It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court
In my opin ion therefore this section when it prohibits the disclo sure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent
The result of the above discussion is that in my opin ion sections 12 and 14 of Act IV of 1950 as above indicated are void and the decision of the detenu s case has to be made by keeping out of sight these two provisions in the Act
If sections 12 and 14 are deleted from the impugned legislation then the result is that the detention of the petitioner is not legal
The statute has not provided for detention for a period of three months or less in such cases as it could have done under article22 4 of the Constitu tion and that being so the petitioner cannot be justifia bly detained even for a period of three months
I would accordingly order his release
In view of the decision above arrived at I do not con sider it necessary to express any opinion on the other points that were argued at great length before us namely 1what is the scope and true meaning of the expression procedure established by law in article 21 of the Consti tution and 2 what is the precise scope of articles 19 1 d and 19 5of the Constitution
MUKHERJEA J This is an application under article 32 of the Constitution praying for a writ of habeas corpus upon the respondents with a view to release the petitioner who it is alleged is being unlawfully detained in the Central Jail Cuddalore within the State of Madras
The petitioner it is said was initially arrested in Malabar on 17th of December 1947 and prosecution was started against him on various charges for having 245 delivered certain violent speeches
While these criminal cases were going on he was served with an order of deten tion under the Madras Maintenance of Public Order Act on 22nd April 1948
This order of detention was held to be illegal by the Madras High Court but on the same day that the judgment was pronounced a second order of detention was served upon him
On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him the detention could not be said to be unlawful
Liberty however was given to him to renew his application if and when his detention under the criminal proceedings ceased
In two out of the three criminal cases the trial before the magistrate ended on February 23 1949 and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases
These sentences however were set aside in appeal on 26th September 1949
As re gards the third case he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months  imprison ment by the Madras High Court on appeal
The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application which was heard after he had served out his sentences of imprisonment referred to above was dismissed in January 1950
On 25th February 1950 the was passed by the Parliament and on the 1st of March follow ing the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 1 of the 
On behalf of the respondents the detention of the petitioner is sought to be justified on the strength of the of 1950
The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the conStitution by reason of its being in conflict with certain 246 fundamental rights which are guaranteed by the Constitution
It is argued therefore that the detention of the peti tioner is invalid and that he should be set at liberty
The contentions that have been but forward by Mr Nambi ar who appeared in support of the petition may be classi fied under four heads
His first contention is that as preventive detention is in substance a restriction on the free movements of a person throughout the Indian territory it comes within the purview of article 19 1 d of Part III of the Constitution which lays down the fundamental rights
Under clause 5 of the article any restriction imposed upon this right of free movement must be reasonable and should be prescribed in the interests of the general public
The question as to whether it is reasonable or not is a justiciable matter which is to be determined by the Court
This being the legal position the learned Counsel invites us to hold that the main provisions of the impugned Act particularly those which are contained in sections 3 7 10 11 12 13 and 14 are wholly unreasonable and should be invalidated on that ground
The second contention advanced by the learned Counsel is that the impugned legislation is in conflict with the provi sion of article 21 of the Constitution inasmuch as it pro vides for deprivation of the personal liberty of a man not in accordance with a procedure established by law
It is argued that the word law  here does not mean or refer to any particular legislative enactment but it means the gener al law of the land embodying those principles of natural justice  with regard to procedure which are regarded as fundamental in all systems of civilised jurisprudence
It is conceded by the learned counsel that the proce dure if any with regard to preventive detention as has been prescribed by article 22 of the Constitution which itself finds a place in the chapter on Fundamental Rights must override those general rules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22 the general provi sion made in article 21 247 must apply
He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the is in conflict with article 22 7 of the Constitution
The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Deten tion Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution
In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legis lative powers of the Government
The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system it has not accepted the English doctrine of the absolute supremacy of Parliament in matters of legislation
In this respect it has followed the American Constitution and other systems modelled on it
Notwithstanding the representative charac ter of their political institutions the Americans regard the limitations imposed by their Constitution upon the action of the Government both legislative and executive as essential to the preservation of public and private rights
They serve as a check upon what has been described as the despotism of the majority and as was observed in the case of Hurtado vs The People of California 1 a government which holds the lives the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power is after all but a despotism
 In India it is the Constitution that is supreme and Parliament as well as the State Legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three 1  32 248 lists occuring in the Seventh Schedule to the Constitution but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress
A statute law to be valid must in all cases be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not
Article 13 2 is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contra vention of this clause shall to the extent of the contra vention be void
Clause 1 of the article similarly invalidates all existing laws which are inconsistent with the provisions of this Part of the Constitution
The fundamental rights guaranteed by the Constitution have been classified under seven heads or categories
They are 1 Right to equality 2 Right to freedom 3 Right against exploitation 4 Right to freedom of religion 5 Cultural and educational rights 6 Right to property and 7 Right to constitutional remedy
The arrangement differs in many respects from that adopted in the American Constitution and bears a likeness on certain points to similar declarations in the Constitutions of other countries
Of the different classes of fundamental rights spoken of above we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32
Article 10 enumerates certain forms of liberty or free dom the protection of which is guaranteed by the Constitu tion
In article 20 certain protections are given in cases of persons accused of criminal offences
Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty except 249 according to procedure established by law
Article 22 pro vides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made makes certain special provisions for the particular form of detention known as Preventive Detention
The first contention advanced by Mr Nambiar involves a consideration of the question as to whether Preventive Detention which is the subject matter of the impugned legislative enactment comes within the purview of article 19 1 d of the Constitution according to which a right to move freely throughout the territory of India is one of the fundamental rights guaranteed to all citizens
If it comes within that sub clause it is not disputed that clause 5 of article 19 would be attracted to it and it would be for the courts to decide whether the restrictions imposed upon this right by the Parliament are reasonable restric tions and are within the permissible limits prescribed by clause 5 of the article
There is no authoritative definition of the term Pre ventive Detention  in Indian law though as description of a topic of legislation it occurred in the Legislative Lists of the Government of India Act 1935 and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Constitution
The expression has its origin in the language used by Judges or the law Lords in England while explaining the nature of detention under Regulation 14 B of the Defence of Realm Consolidation Act 1914 passed on the outbreak of the First World War and the same lan guage was repeated in connection with the emergency regula tions made during the last World War
The word  preventive  is used in contradistinction to the word  punitive  To quote the words of Lord Finlay in Rex vs Halliday1 it is not a punitive but a precautionary measure
 The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it
No offence is proved nor any charge formulated and the justification of such detention is suspicion 1  at p 269
250 or reasonable probability and not criminal conviction which can only be warranted by legal evidence 1
Detention in such form is unknown in America
It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India
This is undoubtedly unfortunate but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people
The detention of a man even as a precautionary measure certainly deprives him of his personal liberty and as article 21 guarantees to every man be he a citizen or a foreigner that he shall not be deprived of his life and personal liberty except in accordance with the procedure established by law the requirements of article 21 would certainly have to be complied with to make preventive detention valid in law
What these requirements are I will discuss later on
Article 22 comes immediately after arti cle 21
It secures to all persons certain fundamental rights in relation to arrest and detention and as already said by way of exception to the rights thus declared makes certain specific provisions relating to preventive deten tion
The subject of preventive detention is specified in and constitutes Item No 9 in the Union legislative List and it also forms Item No 3 in the Concurrent List
Under article 246 of the Constitution the Parliament and the State Legislatures are empowered to legislate on this sub ject within the ambit of their respective authorities
Clause3 of article 22 expressly enjoins that the protec tive provisions of clauses 1 and 2 of the article would not be available to persons detained under any law providing for preventive detention
The only fundamental rights which are guaranteed by the Constitution in the matter of preven tive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are 1 Vide Lord Macmillan in Liversidge vs Anderson  at p 254
251 contained in clauses 4 to 7 of article 22
Clause 4 lays down that no law of preventive detention shall autho rise the detention of a person for a period longer than three months unless an advisory board constituted in the manner laid down in sub clause a of the clause has report ed before the expiration of the period that there is suffi cient cause for such detention
The period of detention cannot in any event exceed the maximum which the Parlia ment is entitled to prescribe under clause 7 b
The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opin ion of the advisory board
There is one safeguard provided for all cases which is contained in clause 5 and which lays down that the authority making the order of detention shall as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
But even here the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose
The question that we have to consider is whether a law relating to preventive detention is justiciable in a Court of law on the ground of reasonableness under article 19 5 of the Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaran teed by clause 1 dof the article
It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses 1 and 2 of the article from per sons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists
I will leave aside for the moment the question as to how far the court can examine the reasonable ness or otherwise of the procedure that is prescribed by any law relating 252 to preventive detention for that would involve a considera tion of the precise scope and meaning of article
21 but this much is beyond controversy that so far as substantive law is concerned article 22 of the Constitution gives a clear authority to the legislature to take away the funda mental rights relating to arrest and detention which are secured by the first two clauses of the article
Any legis lation on the subject would only have to conform to the requirements of clauses 4 to 7 and provided that is done there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground
Both articles 19 and 22 occur in the same Part of the Con stitution and both of them purport to lay down the fundamen tal rights which the Constitution guarantees
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the presumption should be that no conflict or repugnancy was intended by its framers
In interpreting the words of a Constitution the same principles undoubtedly apply which are applicable in construing a statute but as was observed by Lord Wright in James vs Commonwealth of Australia  1  the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other The Constitution his Lordship went on saying has been described as the federal compact and the construction must hold a balance between all its parts
 It seems to me that there is no conflict or repugnancy between the two provisions of the Constitution and an exami nation of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause 1 d of article 19 contemplates is not freedom from detention either punitive or preventive it relates to and speaks of a different aspect or phase of civil liberty
1 at p 613
253 Article 19 which is the first of this series of arti cles enumerates seven varieties or forms of freedom begin ning with liberty of speech and expression and ending  with free right to practise any trade profession or business
The rights declared it articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law
The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community
There cannot be any such thing as absolute or uncon trolled liberty wholly freed from restraint for that would lead to anarchy and disorder
The possession and enjoyment of all rights as was observed by the Supreme Court of America in Jacobson vs Massachusetts 1 are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety health peace general order and morals of the community
The question therefore arises in each case of adjusting the conflicting interests of the individual and of the society
In some cases restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society on the other hand social control which exists for public good has got to be restrained lest it should be misused to the detriment of individual rights and liberties
Ordinarily every man has the liberty to order his life as he pleases to say what he will to go where he will to follow any trade occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person
On the other hand for the very protection of these liberties the society must arm itself with certain powers
No man s liberty would be worth its name if it can be violated with impunity by any wrong doer and if his property or possessions could be preyed upon by a thief or a marauder
The society therefore has got to exercise certain powers for the protection of these liber ties and to arrest search imprison and 1  254 punish those who break the law
If these powers are  prop erly exercised they themselves are the safeguards of free dom but they can certainly be abused
The police may arrest any man and throw him into prison without assigning any reasons they may search his belongings on the slightest pretext he may be subjected to a sham trial and even pun ished for crimes unknown to law
What the Constitution therefore attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control
To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality
On the other hand articles 20 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exer cised
Article 19 uses the expression  freedom and men tions the several forms and aspects of it which are secured to individuals together with the limitations that could be placed upon them in the general interests of the society
Articles 20 21 and 22 on the other hand do not make use of the expression freedom and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty
The right to the safety of one s life and limbs and to enjoyment of personal liberty in the sense of freedom from physical restraint and coercion of any sort are the inher ent birthrights of a man
The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of freedom to do particular things
There is also no question of imposing limits on the activities of individuals so far as the exer cise of these rights is concerned
For these reasons I think these rights have not been mentioned in article 19 of the Constitution
An individual can be deprived of his life or personal liberty only by action 255 of the State either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law
What the Constitution does there fore is to put restrictions upon the powers of the State for protecting the rights of the individuals
The re straints on State authority operate as guarantees of indi vidual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles
In my opinion the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law
It is not correct to say as I shah show more fully later on that article 21 is confined to matters of procedure only
There must be a substantive law under which the State is empow ered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is compe tent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down
Thus a person cannot be convicted or punished under an ex post facto law or a law which compels the accused to incriminate himself in a crimi nal trial or punishes him for the same offence more than once
These are the protections provided for by article 20
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses 1 and 2 of article 22
These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substi tuted in their placebut this is a question of the policy adopted by the Constitution which does not concern us at all
The position therefore is that with regard to life and personal liberty the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such law lays down
Article 19 on the other hand 256 enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21
Most of them may be connected with or dependent upon person al liberty but are not identical with it and the purpose of article 19 is to indicate the limits within which the State could by legislation impose restrictions on the exercise of these rights by the individuals
The reasonableness or otherwise of such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19 though no such review is permissible with regard to laws relating to deprivation of life and personal liber ty
This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the pre cise and definite expression of the intention of the legislature has been preferred by the Constitution to the variable standards which the judiciary might lay down
We find the rights relating to personal liberty being de clared almost in the same terms in the Irish Consti tution article 40 1 4 1 of which lays down that no citizen shall be deprived of his personal liberty save in accordance with law
 In the Constitution of the Free City of Danzig the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law vide article 74
Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Constitution and the language is almost identical
This is the scheme adopted by the Constitution in dealing with the rights to freedom described in the chapter on fundamental rights and in my opinion therefore the proper test for determining the validity of an enactment under which a person is sought to be deprived of his life and personal liberty has to be found not in article 19 but in the three following articles of the Constitution
Article 20 of course has no application so far as the law relating to preventive detention is concerned
Mr Nambiar s endeavour throughout has been to 257 establish that article 19 1 d of the Constitution read with article 19 5 enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty while article 21 embodies the protection as regards proce dural law
This in my opinion would be looking at these provisions from a wrong angle altogether
Article 19 cannot be said to deal with substantive law merely nor article 21 with mere matters of procedure
It cannot also be said that the provisions of article 19 1 d read with clause 5 and article 21 are complementary to each other
The con tents and subject matter of the two provisions are not identical and they proceed on totally different princi ples
There is no mention of any right to life in article 19 although that is the primary and the most important thing for which provision is made in article 21
If the contention of the learned counsel is correct we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con cerned
In the second place even if freedom of movement may be regarded as one of the ingredients of personal liberty surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 5 of the Constitution
Furthermore article 19 is applicable to citizens only while the rights guaranteed by article 21 are for all per sons
citizens as well as aliens
The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under lies this group of articles
I will now turn to the language of article 19 1 d and see whether preventive detention really comes within its purview
Article 19 1 d provides that all citizens shall have the right to move freely throughout the territory of India
The two sub clauses which come immediately after sub clause d and are intimately connected with it are in these terms e To reside and settle in any part of the territory of India 258 f to acquire hold and dispose of property Clause 5relates to all these three sub clauses and lays down that nothing in them shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clause either in the interests of the general public or for the protection of the interests of any scheduled tribe
I agree with the learned Attorney General that in con struing article 19 1 d stress is to be laid upon the expression throughout the territory of India and it is a particular and special kind of right viz that of free movement throughout the Indian territory that is the aim and object of the Constitution to secure
In the next sub clause right tO reside and settle in any part of the territory of India is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo ry
For an analogous provision we may refer to article 301 which says that subject to the other provisions of this Part commerce and intercourse throughout the territory of India shall be free
The meaning of sub clause d of arti cle 19 1 will be clear if we take it along with sub clauses e and f all of which have been lumped together in clause 5 and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable
It will be remembered that these rights are available only to citizens
To an alien or foreigner no guarantee of such rights has been given
Normally all citizens would have the free right to move from one part of the Indian territory to another
They can shift their residence from one place to any other place of their choice and settle anywhere they like
The right of free trade commerce and intercourse throughout the territory of India is also secured
What the Constitu tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned
All the 259 citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like and no restrictions either inter State or otherwise would be allowed to set up in these respects between one part of India and another
So far as free movement throughout the territory is concerned the right is subject to the provision of clause 5 under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe
The interests of the public which necessitates such restrictions may be of var ious kinds
They may be connected with the avoidance of pestilence or spreading of contagious diseases certain places again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail
Whatever the reasons might be it is necessary that these restrictions must be reasonable that is to say commensurate with the purpose for which they are laid down
In addition to general interest the Constitu tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric tions
The scheduled tribes as is well known are a back ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons
Hence there are various provisions disabling them from alienating even their own properties except under special conditions
In their interest and for their benefit laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them
The refer ence to the interest of scheduled tribe makes it quite clear that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another without any sort of discriminatory barriers
This view will receive further support if we look to some analogous provisions in the Constitution of 260 other countries
It will be seen that sub clauses d e and fof article 19 1 are embodied in almost identical language in one single article viz article 75 of the Constitution of the Free City of Danzig
The article runs as follows All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose to acquire real property and to earn their living in any way
This right shall not be curtailed without legal sanctions
 The several rights are thus mentioned together as being included in the same category while they are differentiated from the liberty of the person which is described to be inviolable except by virtue of a law in article 74 which appears just previous to this article
An analogous provi sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner All Germans enjoy the right of change of domicile within the whole Reich
Every one has the right to stay in any part of the Realm that he chooses t6 settle there acquire landed property and pursue any means of livelihood
 Here again the right to personal liberty has been dealt with separately in article 114
A suggestion was made in course of our discussions that the expression throughout the territory of India occurring in article 19 1 d might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran teed by the Constitution
The suggestion does not seem to me to be proper
No State can guarantee to its citizens the
free right to do anything outside its own territory
This is true of all the fundamental rights men tioned in article 19 and not merely of the right of free movement
Further it seems to me that the words throughout the territory of India have nothing to do with rights of emigration
We find that both in the Danzig as well as in the German Constitution where similar words have been used with regard to the excercise of the right of free movement throughout the
261 territory there are specific provisions which guarantee to all nationals the free right of emigration to other coun tries vide article 76 of the Danzig Constitution and arti cle 112 of the Constitution of the German Reich
In my opinion therefore preventive detention does not come either within the express language or within the spirit and intendment of clause 1 d of article 19 of the Constitu tion which deals with a totally different aspect or form of civil liberty
It is true that by reason of preventive detention a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 1 d of the Constitution but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention
Not merely the right under clause 1 d but many of the other rights which are enumerated under the other sub clauses of article 19 1 may be lost or suspended so long as preventive detention continues
Thus a detenu so long as he is under detention may not be able to practise any profession or carry on any trade or business which he might like to do but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 1 g of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause 6 of article 19 and that the only restrictions that could be placed upon the person s free exercise of trade and profession are those specified in that clause
Mr Nambiar concedes that in such cases we must look to the substance of the particular legis lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material
He argues however that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move ments and in fact personal liberty according to him connotes nothing else but unrestricted right of locomotion
The learned counsel refers in this connection to certain passages in Blackstone s Commentaries on the Laws of Eng land where 262 the author discusses what he calls the three absoluterights inherent in every Englishman namely rights of personal security personal liberty and property
Personal security according to Blackstone consists in a person s legal and uninterrupted enjoyment of his life his limb his body his health and his reputation whereas personal liberty consists in the power of locomotion of changing of situation or moving one s person to whatsoever place one s own inclination may direct without imprisonment or restraint unless by due course of law 1
It will be seen that Blackstone uses the expression personal liberty in a somewhat narrow and restricted sense
A much wider and larger connotation is given to it by later writers on con stitutional documents particularly in America
In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual and per sonal liberty in this sense is the antithesis of physical restraint or coercion
According to Dicey who is an acknowledged authority on the subject personal liberty means a personal right not to be subjected to imprisonment arrest or other physical coercion in any manner that does not admit of legal justification2
It is in my opinion this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory
In this connection it may not be irrelevant to
point out that it was in accordance with the recommendation of the Drafting Committee that the word personal was inserted before liberty in article 15 of the Constitution which now stands as article 21
In the report of the Drafting Commit tee it is stated that the word liberty should be quali fied by the insertion of the word personal before it otherwise it might be construed very widely so as to in clude even the freedoms already dealt with in article 13
Article
13 it should be noted is the present article 19
If the views of the Drafting Committee were accepted by the 1 Vide Chase s Blackstone 4th Edn pp 68 73
2 Vide Dicey on Constitutional Law 9th Edn pp
207 208
263 Constituent Assembly the intention obviously was to exclude the contents of article 19
from the concept of personal liberty as used in article 21
To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution
It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based it certainly goes against the contention of the applicant and it shows that the words used in article 19 1 d of the Constitution do not mean the same thing as the expression personal liberty in article 21 does
It is well known that the word  liberty standing by itself has been given a very wide meaning by the Supreme Court of the United States of America
It includes not only personal freedom from physical restraint but the right to the free use of one s own property and to enter into free contractual relations In the Indian Constitution on the other hand the expression personal liberty has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise
Apart from the report of the Drafting Committee that is the plain grammatical meaning of the expression as I have already explained
It may not I think be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty
The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19 but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty
On the other hand the right to hold and dispose of property which is in subclause f of article 19 1 and which is not dependent on full possession of personal liberty by the owner may 264 not be affected if the owner is imprisoned or detained
Anyway the point is not of much importance for purposes of the present discussion
The result is that in my opinion the first contention raised by Mr Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the and see whether it is within the permissible bounds specified in clause 5 of article 19
I now come to the second point raised by Mr Nambiar in support of the application and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides displaying a considerable amount of learning and research
The point however is a short one and turns upon the interpretation to be put upon article 21 of the Constitution which lays down that no person shall be deprived of his   personal liberty except according to procedure established by law
 On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty unless you follow and act according to the law which provides for deprivation of such liberty
The expression procedure means the manner and form of enforcing the law
In my opinion it cannot be disputed that in order that there may be a legally established procedure the law which establish es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to
It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution
The position taken up by the learned Attorney General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I and Item 3 of List III and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 1 d is not attracted to this case the law must be held to be a valid piece of legisla tion and if the procedure 265 laid down by it has been adhered to the validity of the detention cannot possibly be challenged
His further argu ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be
As the impugned Act conforms to the requirements of article 22 no further ques tion of its validity under article 21 of the Constitution at all arises
The latter aspect of his arguments I will deal with later on
So far as the main argument is concernedthe position taken up by Mr Nambiar is that article 21 refers to procedure only and not to substan tive law the procedure however must be one which is established by law
The expression law in this context does not mean or signify according to the learned counsel any particular law enacted by the legislature in conformity with the requirements of the Constitu tion or otherwise possessing a binding authority
It refers to law in the abstract or general sense in the sense of jus and not lex and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own and the authority of which is acknowledged in the jurisprudence of all civilised coun tries
It is argued that if the word law is interpret ed in the sense of any State made law article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government
It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever provided such procedure was scrupulously adhered to
In support of this argument the learned counsel has relied upon a large number of American cases where the Supreme Court of America ap plied the doctrine of due process of law as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen tal principles of law
266 It may be noted here that in the original draft of the Indian Constitution the words used in article 15 which now stands as article 21 were in accordance with due process of law The Drafting Committee recommended that in place of the due process clause the expression according to procedure established by law should be substituted
The present article 21 seems to have been modeled on article 31 of the Japanese Constitution where the language employed is no person shall be deprived of life or liberty nor shall any other criminal penalty be imposed except according to procedure established by law Mr Nambiar argues that the expression procedure established by law in article 21 of the Constitution bears the same meaning as the due process clause does in America restricted only to this extent viz that it is limited to matters of procedure and does not extend to questions of substantive law
To appre ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21 it would be necessary to discuss briefly the conception of the doctrine of due process of law as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America
In the history of Anglo American law the concept of due process of law or what is considered to be its equiva lent law of the land traces its lineage far back into the beginning of the 13th century AD
The famous 39th chapter of the Magna Charta provides that no free man shall be taken or imprisoned or disseized or outlawed or exiled or in any way destroyed nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations 28 Ed
III Chap
3 known as Statute of Westminster of the liberties of London that the expression due process of law for the first time appears
Neither of these phrases was explained or defined in any of the 267 documents but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning
In substance they guaranteed that persons should not be imprisoned without proper indictment and trial by peers and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made 1
These concepts came into America as part of the rights of Englishmen claimed by the colonists
The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase due process of law came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that no person shall be deprived of life liberty or property without due process of law
 It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868
What due process of law exactly means is difficult to define even at the present day The Constitution contains no description of what is due process of law nor does it declare the principles by application of which it could be ascertained
In Twining vs New Jersey 2 the Court ob served Few phrases in the law are so elusive of exact appre hension as this
This COurt has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise
 It is clear however that the requirement of due process of law in the United States Constitution imposes a limitation upon all the powers of Government legislative as well as executive and judicial
Applied in England only as protection against executive usurpation and royal tyranny in America it became a bulwark against arbitrary legislation 3
1 Vide Willoughby on the Constitution of the United States Vol
III p 1087
2 3 Vide Hurtando vs People of California  at p 532
268 As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capri cious legislation it is not within the competence of the Congress to make any process a due process of law by its mere will for that would make the limitation quite nugato ry
As laid down in the case cited above it is not any act legislative in form that is law law is something more than mere will exerted as an act of power
 It means and signifies the general law of the land the settled and abid ing principles which inhere in the Constitution and lie at the root of the entire legal system
To quote the words of Daniel Webster in a famous argument beforethe Supreme Court 1 By the law of the land is most clearly intended the general law a law which hears before it condemns which proceeds upon enquiry and renders judgment only after trial
The meaning is that every citizen shall hold his life liberty property and immunities under the protection of the general rules which govern society
 What these principles of general law are nobody has ever attempted to enumerate
To a large extent they are the principles of English common law and modes of judicial pro ceedings obtaining in England the traditions of which came along with the settlers in America
Some Judges seem to have alluded to the principles of natural justice in ex plaining what is meant by general law or law of the land though the doctrine of a law of nature did not obtain a firm footing at any time
In Wynehamer vs New York 2 Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside of the Constitu tion
Coke s dictum of a supreme fundamental law which obviously referred to principles of English common law cer tainly did exercise considerable influence upon the minds of the American Judges 3 and there are observations in some cases 1 Darmouth College case 4 Wheaton p 518
2 3 Willis on Constitutional Law p 647
269 which go to suggest that the principles of natural justice were regarded as identical with those of common law except where the rules of common law were not considered to be of fundamental character or were not acted upon as being un suited to the progress of time or conditions of the American Society 1
In the case of Loan Association vs Topeka 2 it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name
What is hinted at is undoubtedly the old idea of a social com pact under which political institutions were supposed to come into being and the suggestion is that when the Ameri cans formed themselves into a State by surrendering a por tion of their rights which they possessed at that time and which presumably they inherited from their English ancestors there were certain rights of a fundamental character still reserved by them which no State could possibly take away
As has been said already due process of law has never been defined by Judges or Jurists in America
The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs 3
In the actual application of the clause relating to due process of law to particular cases the decisions of the Supreme Court of America present certain peculiar and unusu al features and there is total lack of uniformity and consistency in them
Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century it was interpreted as a restriction on proce dure and particularly the judicial procedure by which the Government 1 Cooley s Constitutional Limitations Vol
II p 73940
2 20 Wall p 655
3 Cooley s Constitutional Limita tions Vol
II p 741
270 exercises its powers
Principally it related to the proce dure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compli ance with well established criminal proceedings
The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised
During this period it was not considered to have any bearing on substan tial law at all
Change however came in and the period that followed witnessed a growing recognition of the doctrine that sub stantive rights of life liberty and property are protected by the requirement of due process of law against any depri vation attempted at by legislative authority and the polit ical and economic conditions of the country accounted to a great extent for this change in judicial outlook
The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class
New and important problems arose which the States attempted to deal with by various laws and regu lations
Some of them seem to have been ill advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights
The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administrative act which imposed a limitation upon rights of private property or free contractual relations between the employers and employed was invalidated as not being in accordance with due process of law 1
What constituted a legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was
reasonable in the opinion of the Court
The question of reasonableness obviously depends largely upon the
ideas of particular individuals and the Courts or rather the majority of Judges thus marshalled their own 1 Vide Encyclopaedia of the Social Sciences Vol
V pp 265 67
271 views of social and economic policy in deciding the reasona bleness or otherwise of the statutes
In the language of a well known writer the Courts became a kind of negative third chamber both to the State Legislatures and the Con gress1
To what extent the Courts laid stress upon the doctrine of freedom of contract is illustrated in the case of Lochner vs New York2
In that case the question arose as to the validity of a labour legislation which prohibited the employment of persons in certain fields of activity for more than 60 hours a week
Lochner was indicted for violat ing this law by employing a man in his Biscuit and Cake Factory who was to work more than 60 hours in a week
The Court by a majority of 5 to 4 held the statute to be invalid on the ground that the right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right
 That decision has been criticized not merely on the ground that it rested upon an economic theory which to quote the language of Holmes J who was one of the dissentient Judges was not entertained by a large part of the country but it ignored that such regulation was necessary for protecting the health of the employees that is to say it was in substance an exercise of police powers with a view to accomplish some object of public interests
It may be mentioned here that while the due process doctrine was being extended by judicial pronouncements the doctrine of police power which operates to some extent as a check upon the due process clause was simultaneously gaining importance
Roughly speaking police power may be defined as a right of a Government to regulate the conduct of its people in the interests of public safety health morals and convenience
Under this authority a Government may make regulations concerning the safety of building the regulation of traffic the reporting of incurable diseases the inspection of markets the sanitation of factories the hours of work for women 1 Vide Kelley and Harbinson on the American Constitution p 539 198 us 45
Vide Willoughby on the Constitution of the US Vol
III p 271
272 and children the sale of intoxicants and such other matters 1
Here again the extent to which the Court can inter fere with exercise of police powers by the State has not been clearly defined by judicial pronouncements
The doc trine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional yet if the regula tion has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose the wisdom or policy of the legislation should not be examined by the Courts
The rule is not without its exceptions but it is not necessary to elaborate them for our present pur pose2
The later decisions though not quite uniform reveal the growing influence of the police power doctrine
It may be said that since 1936 there has been a definite swing of the judicial pendulum in the other direction
In the case of West Coast Hotel Company vs Parrish3 which related to the legality of a Statute for regulating the minimum wages of women Chief Justice Hughes who delivered the opinion of the Court observed as follows In each case the violation alleged by those attack ing minimum wage regulation for women is deprivation of freedom of contract
What is the freedom The Constitution does not speak of freedom of contract
It speaks of liberty and prohibits the deprivation of liberty without due process of law
In prohibiting that deprivation the Constitution does not recognise an absolute and uncontrol lable liberty
Liberty in each of its phases has its histo ry and connotation
But the liberty safeguarded is liberty in a social organisation which requires the protection of law
against the evils which menace the health safety morals and welfare of the people
 In the succeeding years the indications certainly are that the requirement of due process of law as a substantial restriction on Government control is becoming a thing of the past and the rule is being restricted more 1 Vide Munroe The Government of the US p 522
2 Vide Willoughby on the Constitution of the US Vol
III pp
1709 70
3  273 and more to its original procedural meaning
What will happen in future cannot certainly be predicted at this stage1
Thus it will be seen that the due process clause in the American Constitution came to be used as a potent in strument in the hands of the judiciary for exercising con trol over social legislation
The judicial pronouncements are not guided by any uniform principle and the economic and social ideas of the Judges who form the majority in the Supreme Court for the time being constitute so to say the yard stick for measuring the reasonableness or otherwise of any enactment passed during that period
No writer of American Constitutional Law has been able uptil now to evolve anything like a definite and consistent set of prin ciples out of the large mass of cases where the doctrine of due process of law has been invoked or applied
It is against this background that we must consider how the constitution makers in India dealt with and gave final shape to the provisions on an analogous subject in the Indian Constitution
In the Draft Constitution article 15 which now stands as article 21 was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution
The article was worded as follows No person shall be deprived of his life or liberty without due process of law
 The Drafting Committee in their report recommended a change in the language of this article
The first sugges tion was that the word personal shall be inserted before the word liberty and the second was that the expression in accordance with procedure established by law shall be substituted for due process of law the reason given being that the former expression was more specific
The learned Attorney General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the 1 Swisher The Growth of Constitutional Power in the United States pp 123 25
274 speeches of several members of the Assembly who played an important part in the shaping of the Constitution
As an aid to discover the meaning of the words in a Consti tution these debates are of doubtful value  Resort can be had to them  says Willoughby  with great caution and only when latent ambiguities are to be solved
The proceed ings may be of some value when they clearly point out the purpose of the provision
But when the question is of ab stract meaning it will be difficult to derive from this source much material assistance in interpretation1
The learned Attorney General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee were fully aware of the implications of the differences between the old form of expression and the new
In my opinion in interpreting the Constitution it will be better if such extrinsic evi dence is left out of account
In matters like this differ ent members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense while others took them in a different light
The report of the Drafting Committee howeverhas been relied upon by both parties and there are decided authori ties in which a higher value has been attached to such reports than the debates on the floor of the House
In Caminetti vs United States 2 it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legisla tion in case of doubtful interpretation
The report is extremely short
It simply says that the reason for the suggested change is to make the thing more specific
I have no doubt in my mind that if the due process clause which appeared in the original draft was finally retained by the Constituent Assembly it could be safely presumed that the framers of the Indian 1 Vide Willoughby on the Constitution of the United States p 64
2  275 Constitution wanted that expression to bear the same sense as it does in America
But when that form was abandoned and another was deliberately substituted in its place it is not possible to say that in spite of the difference in the language and expression they should mean the same thing and convey the same idea
Mr Nambiar s contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way namely that instead of being extended over the whole sphere of law substantive as well as adjective it was limited to procedural law mere ly
That is the reason he says why instead of the word process the expression procedure was adopted but the word law means the same thing as it does in the due process clause in America and refers not to any State made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice
Attractive though this argument might at first sight appear I do not think that it would be possible to accept it as sound
In the first place it is quite clear that the framers of the Indian Constitution did not desire to intro duce into our system the elements of uncertainty vagueness and changeability that have grown round the due process doctrine in America
They wanted to make the provision clear definite and precise and deliberately chose the words procedure established by law as in their opinion no doubts would ordinarily arise about the meaning of this expression
The indefiniteness in the application of the due process doctrine in America has nothing to do with the distinction between substantive and procedural law
The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine the contents of which nobody knows and is merely revealed from time to time to the
judicial conscience of the Judges
This theory the Indian Constitu tion deliberately discarded 276 and that is why they substituted a different form in its place which according to them was more specific
In the second place it appears to me that when the same words are not used it will be against the ordinary canons of con struction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country where not only the language is different but the entire political conditions and constitutional set up are dissimi lar
In the Supreme Court of America stress has been laid uniformly upon the word due which occurs before and quali fies the expression process of law
 Due means  what is just and proper according to the circumstances of a particular case
It is this word which introduces the varia ble element in the application of the doctrine for what is reasonable in one set of circumstances may not be so in another and a different set
In the Indian Constitution the word due has been deliberately omitted and this shows clearly that the Constitution makers of India had no inten tion of introducing the American doctrine
The word estab lished ordinarily means fixed or laid down and if law means as Mr Nambiar contends not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law it would not at all be appropriate to use the expression established for natural law or natural justice cannot establish anything like a definite procedure
It does not appear that in any part of the Constitution the word law has been used in the sense of general law connoting what has been described as the principles of natural justice outside the realm of positive law
On the other hand the provision of  article 31 of the Constitu tion which appears in the chapter on Fundamental Rights makes it clear that the word law is equivalent to State made law and to deprive a person of his property the au thority or sanction of such law is necessary
As has been said already the provision of article 21 of
the Indian Constitution reproduces save in one particular the 277 language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japa nese Constitution that in speaking of law it refers to law passed or recognised as such by the State
In the Irish Constitution also there is provision in almost similar language which conveys the same idea
Article 40 4 1 provides that no citizen shall be deprived of his personal liberty save in accordance with law and by law is certain ly meant the law of the State
Possibly the strongest argument in support of Mr Nambi ar s contention is that if law is taken to mean State made law then article 21 would not be a restriction on legisla tion at all
No question of passing any law abridging the right conferred by this article could possibly arise and article 13 2 of the Constitution would have no operation so far as this provision is concerned
To quote the words of an American Judge it would sound very much like the Constitution speaking to the legislature that the latter could not infringe the right created by these articles unless it chose to do so 1
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution
The fundamental rights not merely impose limitations upon the legislature but they serve as checks on the exercise of executive powers as well and in the matter of depriving a man of his personal liberty checks on the high handedness of the executive in the shape of pre venting them from taking any step which is not in accord ance with law could certainly rank as fundamental rights
In the Constitutions of various other countries the provi sions relating to protection of personal liberty are couched very much in the same language as in article 21
It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution makers of India deliberately decided to place these powers in the hands of the legislature
Article 31 of the Japanese Constitution upon which article 21 of our Constitution is modelled also 1 Vide per Bronson 5
in Taylor vs Porte 4 Hill 10
278 proceeds upon the same principle
The Japanese Constitu tion it is to be noted guarantees at the same
time other rights in regard to arrest detention and access to Court which might serve as checks on legislative authority as well
Thus article 32 provides No person shall be denied the right of access to the Courts
 Article 34 lays down No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel nor shall he be detained without adequate cause and upon demand of any person such cause must be immediately shown in open Court in his presence and in the
presence of his counsel
 It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed
Article 22 was not in the original Draft Constitution at all and after the due process clause was discarded by the Constituent Assem bly and the present form was substituted in its place in article 21 article 22 was introduced with a view to provide for some sort of  check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court
My conclusion therefore is that in article 21 the word law has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice
The article presupposes that the law is a valid and binding law under the provisions
of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for
In the view that I have taken the question raised by Mr Nambiar that the is invalid by reason of the fact that the procedure it lays 279 down is not in conformity with the rules of natural justice does not fall for consideration
It is enough in my opin ion if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in of the Constitution
It is also unnecessary to enter into a discussion on the question raised by the learned Attorney General as to wheth er article 22 by itself is a self contained Code with regard to the law of Preventive Detention and whether or not the procedure it lays down is exhaustive
Even if the procedure is not exhaustive it is not permissible to supplement it by application of the rules of natural justice
On the third point raised by Mr Nambiar the only question therefore which requires consideration is whether section 12 of the is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 7a
Article 22 7 a of the Constitution empowers the Parliament to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub clause a of clause 4
Section 12 of the which purports to be an enact ment in pursuance of article 22 7 a of the Constitution provides as follows 1 Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months but not exceeding one year from the date of his detention namely where such person has been detained with a view to preventing him from acting in any manner prejudicial to a the defence of India relations of India with for eign powers or the security of India or b the security of a State or the maintenance of public order
 It will be noticed that there are altogether six 36 280 heads or subjects in the two Items in the legislative lists namely Item No 9 of List I and Item No 3 of List III which deal with preventive detention
Item No 9 of List I mentions reasons connected with defence foreign affairs and security of India while Item No 3 of List III speaks of reasons connected with security of a State the maintenance of public order and the maintenance of supplies and services essential to the community
With the exception of the last head all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten tion for more than three months would be permissible without the opinion of any advisory board
Mr Nambiar s argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which or the classes of cases in which a person could be detained for more than three months as contemplated by article 22 7 a
It is also contended that in view of the fact that the two items circumstances and classes are separated by the conjunction and what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause
It is further pointed out that the mentioning of the same matters as circumstances or classes is not warranted by article 22 7 of the Consti tution and is altogether illogical and unsound
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way
Under article 227a the Parliament may specify the circumstances under which and the classes of cases in which the necessity of placing the cases of detention for examination by the advisory board could be dispensed with
By classes of cases we mean certain determinable groups the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group
Circumstances on the other hand 281 connote situations or conditions which are external to the persons concerned
Preventive detention can be provided for by law for reasons connected with six different matters specified in the relevant items in the legislative lists and whatever the reasons might be there is a provision contained in article 22 4 a which lays down that deten tion for more than three months could not be permitted except with the sanction of the advisory board
An alterna tive however has been provided for by clause b and Parlia ment has been given the option to take away the protection given by clause a and specify the circumstances and the cases when this rule will not apply
I am extremely doubt ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view
The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above
Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause 4 a of the article would not be available
It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment
The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view I am unable to say that the section is invalid as being ultra vires the Constitution
The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes
If it chose the principle implied in the enumeration of subjects under the relevant legislative heads it cannot be said that Parliament has exceeded its powers
I am also unable to hold that both circumstances as well as classes have to be prescribed in order to 282 comply with the requirement of sub clause a of article 22 7
The sub clause a of the article lays down a purely enabling provision and Parliament if it so chooses may pass any legislation in terms of the same
Where an optional power is conferred on certain authority to perform two separate acts ordinarily it would not be obligatory upon it to perform both it may do either if it so likes
Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts
I am extremely doubtful whether the classes themselves could be described as circumstances as they purport to have been done in the section
Circumstances would ordinarily refer to conditions like war rebellion communal disturbances and things like that under which extra precaution might be necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified
It is said that the likelihood of these persons committing the particular acts which are specified might constitute circumstances
 In my opinion that is not a plain and sensible interpretation
But whatev er that may be as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned
As I have said at the beginning the draft is rather clumsy and I do not know why Parliament used the word or when in the Constitution itself the word and has been used
In the fourth and last point raised by Mr Nambiar the principal question for consideration is the validity of section 14 of the 
Subsection 1of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order
It further provides that no Court shall be 283 entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential
Sub section 2 further provides that It shall be an offence punishable with imprisonment for a term which may extend to one year or with fine or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government as the  case may be any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section 1 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order
 The provisions of this section are obviously of a most drastic character
It imposes a ban on the Court and pre vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi cation made to the detenu apprising him of the grounds upon which the detention order was made
The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year
Mr Nambiar s contention is that these restrictions render utterly nugatory the provi sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution
It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made it is impossible for it to come to any deci sion on the point and pass a proper judgment
Though the right to move this 284 Court is not formally taken away the entire proceedings are rendered ineffective and altogether illusory
On behalf of the respondent it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution
If there are no rights under the Constitution guaranteed to a person who is detained under any law of preventive deten tion no question of enforcing such rights by an ap proach to this Court at all arises
I do not think that this argument proceeds on a sound basis and in my opinion section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu tion itself
Article 22 clause 5 of the Constitution lays down as a fundamental right that when a person is detained for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representa tion against the order
Under clause 6 the authority need not disclose such facts as it considers to be against public interest to disclose
But so far as the grounds are concerned the disclosure is not prohibited under any cir cumstance
It is also incumbent upon the detaining authori ty to afford a detenu the earliest opportunity of making a representation against the detention order
It has been held in several cases and in my opinion quite rightly that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same that itself would be an infraction of the right which has been given to the detenu under law
In my opinion it would not be possible for the Court to decide whether the provisions of article 22 clause 5 have been duly complied with and the fundamental right guaranteed by it has been made avail able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court
Apart from this it is also open to
the person detained to contend that the detention 285 order has been a main fide exercise of power by the detain ing authority and that the grounds upon which it is based are not proper or relevant grounds which would justify detention under the provisions of the law itself
These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look ing into the grounds which have been supplied to him under section 7 of the 
In my opinion section 14 of the does materially affect the fundamental rights declared under of the Constitution and for this reason it must be held to be illegal and ultra vires
It is not disputed however that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way
The whole Act cannot therefore be held to be ultra vires
Mr Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti tution for it makes satisfaction of the particular authori ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order
This contention cannot succeed as no infraction of any fundamental right is in volved in it
As has been pointed out already this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention
The provisions are undoubtedly harsh but as they do not take away the rights under articles 21 and 22 of the Constitution they cannot be held to be illegal or ultra vires
The result therefore is that in my opinion the must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires
The present petition however must stand dismissed though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application
286 DAS J I am likewise of opinion that this application should be dismissed
The contention of learned counsel appearing in support of this application is that the provisions of the Act IV of 1950 are extremely drastic and wholly unreasonable and take away or in any event considerably abridge the fundamental rights conferred on the citizens by the provisions of of the Constitution and that this Court should declare the Act wholly void under article 13 2 of the Constitution and set the petitioner at liberty
It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution
The powers of the Court are not the same under all Constitutions
In England Parliament is supreme and there is no limitation upon its legislative powers
Therefore a law duly made by Parliament cannot be challenged in any Court
The English Courts have to interpret and apply the law they have no authority to declare such a law illegal or unconstitutional
By the American Constitution the  legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power
But the written Constitu tion of the United States is supreme above all the three limbs of Government and therefore the law made by the Congress in order to be valid must be in conformity with the provisions of the Constitution
If it is not the Supreme Court will intervene and declare that law to be unconstitutional and void
As will be seen more fully hereafter the Supreme Court of the United States under the leadership of Chief Justice Marshall assumed the power to
declare any law unconstitutional on the ground of its not being in due process of law an expression to be found in the Fifth Amendment 1791 of the United States Constitution and the Fourteenth Amendment 1868 which related to the State Constitutions
It is thus that the Supreme Court established its own supremacy over the executive and the Congress
In India the position of the Judiciary is some where in 287 between the Courts in England and the United States
While in the main leaving our Parliament and the State Legisla tures supreme in their respective legislative fields our Constitution has by some of the articles put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter
The point to be noted however is that in so far as there is any limitation on the legislative power the Court must on a complaint being made to it scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution al for the Court is bound by its oath to uphold the Consti tution
But outside the limitations imposed on the legisla tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature
Our Constitution unlike the English Constitution recognises the Court s supremacy over the legislative authority but such supremacy is a very limited one for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself
Within this restrict ed field the Court may on a scrutiny of the law made by the Legislature declare it void if it is found to have trans gressed the constitutional limitations
But our Constitu tion unlike the American Constitution does not recognise the absolute supremacy of the Court over the legislative authority in all respects for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States
It is well for us to constantly remember this basic limitation on our own powers
The impugned Act has been passed by Parliament after the Constitution came into force
Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to 288 the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule
It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule
Residuary powers of legislation are vested in parliament under article 248
The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries
This legisla tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution
Our Constitution has there fore accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla tion
It is a novel feature to provide for preventive detention in the Constitution
There is no such provision in the Constitution of any other country that I know of
Be that as it may for reasons good or bad our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime
To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves
This is another basic fact which the Court must not overlook
The next thing to bear in mind is that if there were nothing else in the Constitution the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute
In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had in making a partic ular law over  stepped its legislative field and en croached upon the legislative field of the other legislative power but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures
289 Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased
Such a law might have authorised a policeman not to speak of a District Magistrate or Sub Divisional Magistrate or the Commissioner of Police to take a man citizen or non citi zen into custody and keep him in detention for as long as he pleased
This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all
Likewise under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer
Such law might have forbidden any speech criti cising the Government however mildly or banned all public meetings or prohibited formation of all associations under penalty of law
Under Entry 33 of List I the Parliament might have made a law for acquiring anybody s properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth ing
Under Entry 81 Parliament could have made any law restricting or even prohibiting inter State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa
It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution
Our Legislatures subject to the limitation of distribution of legislative powers would have been as supreme in their respective legislative fields as the 290 English Parliament is and has been
The Court in India in such event would have had to take the law duly made inter pret it and apply it
It would not have been entitled to utter a word as to the propriety of the particular law although it might have shuddered at the monstrous atrocities of such law
Our Constitution however has not accepted this abso lute supremacy of our Parliament or the State Legislature
Thus by article 245 1 the legislative power is definitely made subject to the provisions of this Constitution
 Turning to the Constitution article 13 2 provides as follows The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
 This clearly puts a definite limitation on the wide legislative powers given by article 246
It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation
In this respect again the Court has supremacy over the Legislature
From the provisions so far referred to it clearly follows that there are two principal limitations to the legislative power of parliament namely i that the law must be within the legislative compe tence of parliament as prescribed by article 246 and ii that such law must be subject to the pro visions of the Constitution and must not take away or abridge the rights conferred by Part III
There can be no question and indeed the learned Attorney General does not contend otherwise that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power
Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246
His contention is that the impugned Act is void 291 because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution
It is therefore necessary to ascertain first the exact nature extent and scope of the particular fundamental right insist ed upon and then to see whether the impugned Act has taken away or in any way abridged the fundamental right so ascertained
Civil rights of a person are generally divided into two classes namely the rights attached to the person jus personarum and the rights to things ie property jus rerum
Of the rights attached to the person the first and foremost is the freedom of life which means the right to live ie the right that one s life shall not be taken away except under authority of law
Next to the freedom of life comes the freedom of the person which means that one s body shall not be touched violated arrested or imprisoned and one s limbs shall not be injured or maimed except under authority of law
The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person
If a man s person is free it is then and then only that he can exercise a variety of other auxiliary rights that is to say he can within certain limits speak what he likes assemble where he likes form any associations or unions move about freely as his own inclination may direct reside and settle anywhere he likes and practise any profession or carry on any occupation trade or business
These are attributes of the freedom of the person and are consequently rights attached to the person
It should be clearly borne in mind that these are not all the rights attached to the person
Besides them there are varieties of other rights which are also the attributes of the freedom of the person
All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated
Some of these auxiliary rights are so important and fundamental that they are re garded and valued as separate and independent rights apart from the freedom of the person
Personal liberties may be compendiously summed up as the right to do as one pleases within the law
I 292 say within the law because liberty is not unbridled licence
It is what Edmund Burke called regulated freedom Said Montesquieu in Book III Ch 3 of his Spirit of the Laws In Governments that is in societies directed by laws liberty can consist only in the power of doing what we ought to will and in not being constrained to do what we ought not to will
We must have continually present to our minds the difference between independence and liberty
Liberty is a right of doing whatever the laws permit and if a citizen could do what they forbid he would no longer be possessed of liberty because all his fellow citizens would enjoy the same power
 To the same effect are the following observations of Webster in his Works Vol
II p 393 Liberty is the creation of law essentially different from that authorised licentiousness that trespasses on right
It is a legal and refined idea the offspring of high civilization which the savage never understands and never can understand
Liberty exists in proportion to wholesome restraint the more restraint on others to keep off from us the more liberty we have
It is an error to suppose that liberty consists in a paucity of laws  
The working of our complex system full of checks and restraints on legislative executive and judicial power is favourable to liberty and justice
These checks and restraints are so many safeguards set around individual rights and interests
That man is free who is protected from injury
 Therefore putting restraint on the freedom of wrong doing of one person is really
securing the liberty of the intended victims
To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers
Therefore restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera tions but also objectively as securing the liberty of a far greater number of individuals
Social interest in individu al 293 liberty may well have to be subordinated to other greater social interests
If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals for it will enure for the greater liberty of the rest of the members of the society
At the same time our liberty has also to be guarded against executive legislative as well as judicial usurpation of powers and prerogatives
Subject to certain restraints on individuals and reasonable checks on the State every person has a varie ty of personal liberties too numerous to be cataloged
As will be seen more fully hereafter our Constitution has recognised personal liberties as fundamental rights
It has guaranteed some of them under article 19 1 but put re straints on them by clauses 2 to 6
It has put checks on the State s legislative powers by articles 21 and 22
It has by providing for preventive detention recognised that individual liberty may be subordinated to the larger social interests
Turning now to the Constitution I find that Part III is headed and deals with Fundamental Rights under seven heads besides General provisions articles 12 and 13 namely Right to Equality articles 14 to 18 Right to Freedom articles 19 to 22 Right against Exploitation articles 23 and 24 Right to Freedom of Religion articles 25 to 28 Cultural and Educational Rights articles 29 and 30 Right to Property article 31 Right to Constitutional Remedies articles 32 to 35
Under the heading Right to Freedom are grouped four arti cles 19 to 22
Article 19 1 is in the following terms   1 All citizens shall have the right a to freedom of speech and expression b to assemble peaceably and without arms c to form associations or unions d to move freely throughout the territory of India e to reside and settle in any part of the territory of India f to acquire hold and dispose of property and 294 g to practise any profession or to carry on any occupation trade or business
 It will be noticed that of the seven rights protected by clause 1 of article 19 six of them namely a b c d e and g are what are said to be rights at tached to the person jus personarum
The remaining item namely f is the right to property jus rerum
If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla tures from making any law taking away or abridging any of those rights
But a perusal of article 19 makes it abun dantly clear that none of the seven rights enumerated in clause 1 is an absolute right for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses 2 to 6 of that article
Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights
The nett result is that the unlimit ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must in order to be valid observe these limitations
Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses 2 to 6 whichever is applicable the Court will declare the same to be unconstitutional and therefore void under article 13
Here again there is scope for the application of the intel lectual yardstick of the Court
If however the Court finds on scrutiny that the law has not overstepped the constitutional limitations the Court will have to uphold the law whether it likes the law or not
The first part of the argument is put broadly namely that personal liberty is generally guaranteed by the Consti tution by article 19 1 and that the  has imposed unreasonable 295 restrictions thereon in violation of the provisions of clauses 2 to 6 of that article
The very first question that arises therefore is as to whether the freedom of the person which is primarily and directly suspended or de stroyed by preventive detention is at all governed by arti cle 19 1
If personal liberty as such is guaranteed by any of the sub clauses of article 19 1 then why has it also been protected by article 21  The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 1 and article 21 gives only an additional protection by prescrib ing the procedure according to which that right may be taken away
I am unable to accept this contention
If this argument were correct then it would follow that our Consti tution does not guarantee to any person citizen or non citizen the freedom of his life as a substantive right at all for the substantive right to life does not fall within any of the sub clauses of clause 1 of article 19
It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar antee and protect it
On a parity of reasoning no Constitu tion or human laws can in that sense guarantee freedom of speech or free movement for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation
Further what has been called the procedural protection of article 21 would be an act of supererogation for when God takes away one s life whatever opportunity He may have had given to Adam to explain his conduct before sending him down He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21
The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right
So does article 31 of the Japanese Constitution of 1946
There is no reason why our Constitution should not do the same
The truth is that article 21 has given that protection to life as a substan tive right and that as will be seen hereafter that article properly understood does not purport to prescribe any par ticular procedure at all
The 38 296 further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19 clause 1 and no other right attached to his person
As I have already stated besides the several rights mentioned in the several sub clauses of article 19 1 there are many other personal liberties which a free man ie a man who has the freedom of his person may exercise
Some of those other rights have been referred to by Harries CJ of Calcutta in his unreported judgment in Miscellaneous Case No 166 of 1950 Kshitindra vs The Chief Secretary of West Bengal while referring the case to a Full Bench in the following words  It must be remembered that a free man has far more and wider rights than those stated in article 19 1 of the Constitution
For example a free man can eat what he likes subject to rationing laws work as much as he likes or idle as much as he likes
He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19
If freedom of person was the result of article 19 then a free man would only have the seven rights mentioned in that article
But obviously the free man in India has far greater rights
 I find myself in complete agreement with the learned Chief Justice on this point
If it were otherwise the citizen s right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart ment without the necessity of any rationing laws
The Government may enforce prohibition without any prohibition laws or licensing laws and so on
I cannot accept that our Constitution intended to give no protection to the bundle of rights which together with the rights mentioned in sub clauses a to e and g make up personal liberty
In deed I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression personal liber ty in  article 21 and protects all of them
It is pointed out that in the original draft the word liberty only was used as in the American 297 Constitution but the Drafting Committee added the word personal to make it clear that what was being protected by what is now article 21 was not what had already been pro tected by what is now article 19
If it were permissible to refer to the Drafting Committee s report it would be anoth er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19
I do not however desire to base my judgment on the Drafting Committee s report and I express no opinion as to its admissibility
Whatever the intentions of the Drafting Committee might have been the Constitution as finally passed has in article 21 used the words personal liberty which have a definite connotation in law as I have explained
It does not mean only liberty of the person but it means liberty or the rights attached to the person jus personarum
The expressions freedom of life or personal liberty are not to be found in article 19 and it is strain ing the language of article 19 to squeeze in personal liber ty into that article
In any case the right to life cannot be read into article 19
Article 19 being confined in its operation to citizens only a non citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21
If there be no substantive right what will the procedure protect  I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution
I am unable there fore for all the reasons given above to agree that person al liberties are the result of article 19 or that that article purports to protect all of them
It is next urged that the expression personal liberty is synonymous with the right to move freely and therefore comes directly under article 19 1 d
Reference is made to the unreported dissenting judgment of Sen J of Calcutta in Miscellaneous Case No 166 of 1950 while referring that case to a Full Bench
298 In his judgment Sen J quoted the following passage from Blackstone s Commentaries  Next to personal security the law of England regards asserts and preserves the personal liberty of individuals
This personal liberty consists in the power of locomotion of changing situation or moving one s person to whatsoever place one s own inclination may direct without imprisonment or restraint unless by due course of law Page 73 of George Chase s Edition 4th Edition of Blackstone Book I Chapter I
On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 1d
I am unable to agree with the learned Judge s con clusion
On a perusal of Chapter I of Book I of Black stone s Commentaries it will appear that theearned commen tator divided the rights attached to the person jus person arum into two classes namely personal security and personal liberty
 Under the head personal security Blackstone included several rights namely the rights to  life limb body health and reputation and under the head personal liberty he placed only the right of free move ment
He first dealt with the several rights classified by him under the head personal security and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion
There is no reason to suppose that in article 21 of our Constitution the expression personal liberty has been used in the restricted sense in which Blackstone used it in his Commentaries
If personal liber ty in article 21 were synonymous with the right to move freely which is mentioned in article 19 1 d then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti cle 21 but none of the other rights in the other sub clauses of article 19 1 has any procedural protection at all
According to learned counsel for the petitioner the proce dure required by article 21 consists of notice and a right of hearing before an impartial tribunal
Therefore accord ing to him a man s right of movement cannot be taken away without giving him notice and a fair trial 299 before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all
The proposi tion has only to be stated to be rejected
In my judgment article 19 protects some of the important attributes of personal liberty as independent rights and the expression personal liberty has been used in article 21 as a compen dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men
Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 1d unless it satisfies the test of reasonableness laid down in clause 5
The argument is attractive and requires serious consideration as to the exact purpose and scope of sub clause d of article 19 1
There are indications in the very language of article 19 1 d itself that its purpose is to protect not the gener al right of free movement which emanates from the freedom of the person but only a specific and limited aspect of it namely the special right of a free citizen of India to move freely throughout the Indian territory ie from one State to another within the Union
In other words it guarantees for example that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause 5
It is this special right of movement of the Indian citizen in this specific sense and for this particu lar purpose which is protected by article 19 1 d
It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J in Sunil Kumar vs The Chief 300 Secretary of West Bengal 1 that the words through 
out the territory of India occurring in that sub clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions
I am unable to accept this interpre tation
Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution for that would have gone without saying
The words throughout the territory of India are not used in connection with most of the other sub clauses of clause 1 of article 19
Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression say in Pakistan  Does it guarantee to
its citizens a right to assemble or to form associations or unions in a foreign territory  Clearly not
Therefore it was not necessary to use those words in sub clause d to indicate that free movement in foreign countries was not being guaranteed
It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India
Does the omission of those words from article 19 1 a indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences  Clearly not
Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words throughout the territory of India the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given
then the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow  Do not those other rights prevail throughout the Indian territory  1 301 Clearly they do even without those words
Therefore those words must have been used in sub clause d for some other purpose
That other purpose as far as I can apprehend it is to indicate that free movement from one State to another within the Union is protected so that Parliament may not by a law made under Entry 81 in List I curtail it beyond the limits prescribed by clause 5 of article 19
Its purpose as I read it is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the general right of locomotion emanating from the freedom of the person
It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union
In short it is a protection against provincialism
It has nothing to do with the freedom of the person as such
That is guaranteed to every person citizen or otherwise in the manner and to the extent formulated by article 21
Clause 5 of article 19 qualifies sub clause d of clause 1 which should therefore be read in the light of clause 5
The last mentioned clause permits the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India as ex plained above
Imposition of reasonable restrictions clearly implies that the right of free movement is not entirely destroyed but that parts of the right remain
This reasona ble restriction can be imposed either in the interest of the general public or for the protection of the interests of any Scheduled Tribe
The Scheduled Tribes usually reside in what are called the Scheduled Areas
The provision for imposing restriction on the citizens  right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas
It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas although they are left quite free to move about elsewhere
This restraint may well be 302 necessary for the protection of the members of the Sched uled Tribes who are generally impecunious and constitute a backward class
They may need protection against money lenders or others who may be out to exploit them
They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes
Likewise the free movement of citizens may have to be restricted in the interest of the general public
A person suffering from an infectious disease may be prevent from moving about and spreading the disease
and regulations for his segregation in the nature of quarantine may have to be introduced
Likewise healthy people may be prevented in the interests of the general public from entering a plague infected area
There may be protected places eg forts or other strategic places access where to may have to be regulated or even prohibited in the inter ests of the general public
The point to be noted however is that when free movement is thus restricted whether in the interest of the general public or for the protection of the Scheduled Tribes such restriction has reference gener ally to a certain local area which becomes the prohibited area but the right of free movement in all other areas in the Union is left unimpaired
The circumstance that clause 5 contemplates only the taking away of a specified area and thereby restricting the field of the exercise of the right conferred by subclause d of clause 1 indicates to my mind that subclause dis concerned not with the freedom of the person or the general right of free movement but with a specific aspect of it regarded as an independent right apart from the freedom of the person
In other words in sub clause dthe real emphasis is on the words throughout the territory of India
 The purpose of article 19 1 d is to guarantee that there shall be no State barrier
It gives protection against provincialism
It has nothing to do with the freedom of the person as such
Finally the ambit and scope of the rights protected by article 19 1 have to be considered
Does it protect the right of free movement and the other 303 personal rights therein mentioned in all circumstances irrespective of any other consideration  Does it not postulate a capacity to exercise the rights  Does its protection continue even though the citizen lawfully loses his capacity for exercising those rights  How can the continuance of those personal rights be compatible with the lawful detention of the person  These personal rights and lawful detention cannot go together
Take the case of a person who has been properly convicted of an offence punish able under a section of the Indian Penal Code as to the reasonableness of which there is no dispute
His right to freedom of speech is certainly impaired
Under clause 2 the State may make a law relating to libel slander defama tion contempt of Court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State
Any law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expression
It means that the law may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words
To say that every crime undermines the security of the State and therefore every section of the Indian Penal Code irrespective of whether it has any reference to speech or expression is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 1 a
There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause 2 of article 19
Likewise a detention on lawful conviction impairs each of the other personal rights men tioned in sub clauses b to e and g far beyond the limits of clauses 8 to 6
The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub clauses b to e and g is a law imposing 304 reasonable restriction on those several rights has not even the merit of plausibility
There can be no doubt that a detention as a result of lawful conviction must necessari ly impair the fundamental personal rights guaranteed by article 19 1 far beyond what is permissible under clauses 2 to 6 of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed
Why  Because the freedom of his person having been lawfully taken away the convict ceases to be entitled to exercise the freedom of speech and expression or any of the other personal rights protected by clause 1 of article 19
On a parity of reasoning he cannot while the detention lasts exercise any other personal right eg he cannot eat what he likes or when he likes but has to eat what the Jail Code provides for him and at the time when he is by Jail regulations required to eat
Therefore the conclusion is irresistible that the rights protected by article 19 1 in so far as they relate to rights attached to the person ie the rights referred to in sub clauses a to e and g are rights which only a free citizen who has the freedom of his person unimpaired can exercise
It is pointed out as a counter to the above reasonings that detention as a result of a lawful conviction does not deprive a person of his right to acquire or hold or dispose of his property mentioned in sub clause f
The answer is simple namely that that right is not a right attached to the person jus personrum and its existence is not depend ent on the freedom of the person
Loss of freedom of the person therefore does not suspend the right to property
But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under sub clause f of clause 1 of article 19 has been infringed
It follows that the rights enumerated in article 19 1 subsist while the citizen has the legal capacity to exercise them
If his capacity to exercise them is gone by reason of a lawful conviction with respect to the rights 305 in sub clauses a to e and g or by reason of a lawful compulsory acquisition with respect to the right in sub clause f he ceases to have those rights while his inca pacity lasts
It further follows that if a citizen s free dom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence that citizen for precisely the same reason cannot exercise any of the rights attached to his person including those enumerated in sub clauses a to e and g of article 19 1
In my judgment a lawful detention whether punitive or preventive does not offend against the protection conferred by article 19 1 a to e and g for those rights must necessarily cease when the freedom of the person is lawfully taken away
In short those rights end where the lawful detention be gins
So construed article 19 and article 21 may there fore easily go together and there is in reality no con flict between them
It follows therefore that the validi ty or otherwise of preventive detention does not depend on and is not dealt with by article 19
To summarise the freedom of the person is not the result of article 19
Article 19 only deals with  certain particu lar rights which in their origin and inception are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights
It does not deal with the freedom of the person as such
Article 19 1 d protects a specific aspect of the right of free locomotion namely the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such
The protection of article 19 is co termi nous with the legal capacity of a citizen to exercise the rights protected thereby for sub clauses a to e and g of article 19 1 postulate the freedom of the person which alone can ensure the capacity to exercise the rights pro tected by those sub clauses
A citizen who loses the free dom of his person by being lawfully detained whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and therefore has none of the rights which sub clauses a to e and g may protect
306 In my judgment article 19 has no bearing on the question of the validity or otherwise of preventive detention and that being so clause 5 which prescribes a test of reasonable ness to be defined and applied by the Court has no applica tion at all
Article 19 being thus out of the way I come to article 20 which is concerned with providing protection against what are well known as ex post facto laws double jeopardy and self incrimination
This article constitutes a limitation on the absolute legislative power which would but for this article be exercisable by Parliament or the State Legisla tures under article 246 read with the legislative lists
If the Legislature disobeys this limitation the Court will certainly prevent it
Article 20 has no bearing on preven tive detention laws and I pass on
Article 21 runs thus 21
No person shall be deprived of his life or person al liberty except according to procedure established by law
 The contention of learned counsel for the petitioner is that by this article the Constitution offers to every per son citizen or non citizen only a procedural protection
According to the argument this article does not purport to give any protection to life or personal liberty as a sub stantive right but only prescribes a procedure that must be followed before a person may be deprived of his life or personal liberty
I am unable to accept this contention
Article 21 as the marginal note states guarantees to every person protection of life and personal liberty
 As I read it it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution
The avowed object of the article as I apprehend it is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right
The right to life and 307 personal liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by law
Liability to deprivation according to procedure established by law is in the nature of words of limitation
The article delimits the right by a reference to its liability to deprivation according to procedure estab lished by law and by this very definition throws a corre sponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty
What that procedure is to be is not within the purpose or purview of this article to prescribe or indicate
The claim of learned counsel for the petitioner is that article 21 prescribes a procedure
This procedure accord ing to learned counsel means those fundamental immutable rules of procedure which are sanctioned or well established by principles of natural justice accepted in all climes and countries and at all times
Apart from the question whether any rule of natural procedure exists which conforms to the notions of justice and fair play of all mankind at all times it has to be ascertained whether the language of article 21 will permit its introduction into our Constitu tion
The question then arises as to what is the meaning of the expression procedure established by law
 The word procedure in article 21 must be taken to signify some step or method or manner of proceeding leading up to the depriva tion of life or personal liberty
According to the language used in the article this procedure has to be established by law
 The word establish according to the Oxford English Dictionary Vol
III p 297 means amongst other things to render stable or firm  to strengthen by materi al support to fix settle institute or ordain permanently by enactment or agreement According to Dr Annandale s edition of the New Gresham Dictionary the word establish means amongst other things to found permanently to institute to enact or decree to ordain to ratify to make firm
 It follows that the word established in its ordi nary natural sense means amongst other things enacted Established by law will 308 therefore mean enacted by law
 If this sense of the word established is accepted then the word law must mean State made law and cannot possibly mean
the principles of natural justice for no procedure can be said to have ever been enacted by those principles
When section 124 A of the Indian Penal Code speaks of Government established by law surely it does not mean Government set up by natural justice
 Therefore procedure established by law must I apprehend be procedure enacted by the State which by its definition in article 12 includes parliament
There is no escape from this position if the cardinal rule of construc tion namely to give the words used in a statute their ordinary natural meaning is applied
And this construction introduces no novelty or innovation for at the date of the Constitution the law of procedure in this country
both civil and criminal was mainly if not wholly the creature of statute
The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure
Therefore procedure established by law is quite compatible with procedure enact ed by law
If however the word established is taken to mean sanctioned or settled or made firm then the question will arise as to the meaning of the word law in that context
Reference is made to Salmond s Jurisprudence 10th Edition p 37 showing that the term law is used in two senses and it is suggested that the word law in the expression established by law means law in its abstract sense of the principles of natural justice
It is jus and not lex says learned counsel for the petitioner
It is pointed out that both the English and the Indian law in many cases some of which have been cited before us have recog nised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution
I find it difficult to let in princi ples of natural justice as being within the meaning of the word law having regard to the obvious meaning of that word in the other articles
Article 14 certainly embodies a principle of natural justice which ensures to
309 every person equality before the law
When natural jus tice speaks of and enjoins equality before the law that law must refer to something outside natural justice and must mean the State made laws
It is only when the State law gives equality to every person that that law is said to be in accordance with natural justice
There can be no doubt that the words in accordance with law in article 17 have reference to State law
Likewise the word law in article 20 1 can mean nothing but law made by the State
The same remark applies to the words in accordance with law in articles 23 31 and 32
Natural justice does not impose any tax and therefore the word law in articles 265 and 286 must mean State made law
If this be the correct meaning of the word law then there is no scope for intro ducing the principles of natural justice in article 21 and procedure established by law must mcan procedure estab lished by law made by the State which as defined includes Parliament and the Legislatures of the States
We have been referred to a number of text books and decisions showing the development of the American doctrine of due process of law and we have been urged to adopt those principles in our Constitution
The matter has to be considered against its historical background
The English settlers in different parts of America had carried with them the English common law as a sort of personal law regulating their rights and liberties inter se as well as between them and the State
After the War of Independence the Constitu tions of the United States were drawn up in writing
The majority of those who framed the Constitution were lawyers and had closely studied the Commentaries of the great Eng lish jurist Blackstone who in his famous commentaries had advocated the separation of the three limbs of the State namely the executive the legislature and the judiciary
Montesquit s Spirit of Laws had already been published wherein he gave a broader and more emphatic expression to the Aristotelian doctrine of separation of powers
The experience of the repressive laws of Parliament had im pressed upon the framers of the American Constitution the 310 belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them
The interference of the colonial governors with legislation and the judiciary was also real
This sad experience coupled with the political philosophy of the time induced the fram ers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature
See Munro on the Government of the United States 5th Edition Chapter IV p 53 et seq
Says Judge Cooley in his Constitutional Limitations 6th Edition Vol
II Chap ter XI p 755 The people of the American States holding the sover eignty in their own hands have no occasion to exact any pledges from any one for a due observation of individual rights but the aggressive tendency of power is such that they have deemed it of no small importance that in framing the instruments under which their governments are to be administered by their agents they should repeat and re enact this guarantee and thereby adopt it as a principle of constitutional protection
 There can be little doubt that the people of the differ ent States in America intended not to take any risk as to their life liberty or property even from the legislature
As Munro puts it at pp
58 61  The framers of the Constitution set boundaries to the powers of the Congress and it was their intent that these limitations should be observed
But how was such observance to be enforced by the Courts  The statesmen of 1767 did not categorically answer that question
 The Constitution was silent and there was no express provision as to who was to serve as umpire in case the Congress overstepped the limits of its legislative powers
By the 5th Amendment what is now known as the due process clause was introduced in the Federal Constitution and by the 14th Amendment a similar clause was adopted in the State Constitutions
Some of the State Constitutions used the words due course of law some repeated the words of Magna Charta namely the law of the land but most of 311 them used the expression due process of law
 All the expressions meant the same thing namely that no person should be deprived of his life liberty or property except in due process of law
The Constitution by this clause gave the Supreme Court an opportunity to take upon itself the function of declaring the national laws unconstitutional
And the Supreme Court under the leadership of Chief Justice John Marshall seized this opportunity and assumed the right to say the last word on questions of constitutionality and possesses that right to day Munro p 62
The expression due process of law has been interpreted by the American Courts in different ways at different times
Carl Brent Swisher in his book on the Growth of Constitutional Power in the United States at p 107 says with reference to the development of the doctrine of due procedure The American history of its interpretation falls into three periods
During the first period covering roughly the first century of Government under the Constitution due process was interpreted principally as a restriction upon procedure and largely the judicial procedure by which the Government exercised its powers
During the second periodwhich again roughly speaking extended through 1936 due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activi ties in which the Government might engage
During the third period extending from 1936 to date the use of due process as a substantive restriction has been largely suspended or abandoned leaving it principally in its original status as a restriction upon procedure
 In the guise of interpreting due process of law the American Courts went much further than even Lord Coke ever thought of doing
The American Courts gradually arrogated to themselves the power to revise all legislations
In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life liberty or property
In course of time due process of law came to be applied to personal liberty to social control to procedure 40 312 to jurisdiction and to substantive law Willis p 642
In the words of Munro due process of law became a sort of palladium covering all manner of individual rights
A_II the while the Supreme Court refused to define the phrase but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable Willis p 657
In Holden vs Hardy 1 we find the following observa tions This Court has never attempted to define with precision the words  due process of law   
It is suffi cient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard
In Taylor vs Peter 2 Bronson J observed The words by the law of the land  as used in the Constitution do not mean a statute passed for the purpose of working the wrong
That construction would render the restriction absolutely nugatory and turn this part of the Constitution into mere nonsense
The people would be made to say to the two Houses  You shall be vested with the legis lative power of the
State but no one shall be disenfran chised or deprived of any of the rights or privileges of a citizen unless you pass a statute for that purpose
In other words you shall not do the wrong unless you choose to do it  It was thus that the Supreme Court of the United States firmly established its own supremacy over the other two limbs of the State namely the executive and the Congress
In the words of John Dickinson quoted in Munro at p 61 The Judges of Aragon began by setting aside laws and ended by making them And all this sweeping development could only be possible because of the presence of one little word due which in its content knows no bound and is not subject to any fixed definition
Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned Judges of the Supreme Court it was not reasonableand therefore it was not due 1  at p 389
2 4 Hill 140 145 313 The very large and nebulous import of the word due was bound to result in anomalies for what was not due on one day according to the Judges then constituting the Supreme Court became due say 20 years later according to the new Judges who then came to occupy the Bench for the Court had to adapt the Constitution to the needs of the society which were continually changing and growing
The larger content of due process of law which included both procedural and substantive due process of law had of necessity to be narrowed down for social interest in personal liberty had to give way to social interest in other matters which came to be considered to be of more vital interest to the commu nity
This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers a pecul iarly American doctrine
The police powers are nowhere exhaustively defined
In Chicago B  Q Ry
vs Drainage Commissioner 1  police power has been stated to em brace regulations designed to promote the public convenience or the general prosperity as well as regulations designed to promote the public health the public morals or the public safety Reference in this connection may be made to Cooley s Constitutional Limitations 8th Edition Vol
II p 1223 and to Chapter XXVI of Willis at p 727
The nett result is that the all inclusive and indefina ble doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former
Who knows when the pendulum will swing again
Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases
In Westervelt vs Gregg 2 Edwards J defined it thus Due process of law undoubtedly means in the due course of legal proceedings according to those rules 204 us 561592
2 314 and forms which have been established for the protection of private rights
 A more specific definition of the expression the law of the land meaning procedural due process was given by Web ster appearing as counsel for the plaintiff in error in the Trustees of Dartmouth College vs Woodward 1 By the law of the land is most clearly intended the general law a law which hears before it condemns which proceeds upon inquiry and renders judgment only after trial
The meaning is that every citizen shall hold his life liberty property and
immunities under the protection of the general rules which govern society
Everything which may pass under the form of an enactment is not therefore to be considered the law of the land Willis in Ch
XXIII p 661 says The guarantee of due process of law as a matter of procedure means that no part of a person s personal liberty including ownership shall be taken away from him except by the observance of certain formalities
Hence its object is the protection of the social interest in personal liberty
 At p 662 Willis enumerates the requirements of the procedural due process of law as follows1 notice
2 opportunity to be heard 3 an impartial tribunal and 4 an orderly course of procedure
In short the procedural due process requires that a person who is to be deprived of his life liberty or property shall have had his day in Court
 This according to Willough by p 736 means 1 that he shall have had due notice which may be actual or constructive of the institution of the proceed ings by which his legal rights may be affected 2 that he shall be given a reasonable opportunity to appear and defend his rights including the right himself to testify to produce witnesses and to introduce relevant documents and other evidence 3 that the tribunal in or before which his rights are adjudicated is so constituted as to give reasona ble assurance of its
1  at p 579 4 L Edn 629 at p 645
315 honesty and impartiality and 4 that it is a Court of competent jurisdiction
 It will be noticed that the fourth item of Willoughby is different from the fourth item of Willis
Such in short are the history of the development of the doctrine of the process of law in the United States and the requirements of the procedural due process as insisted on by the Supreme Court of that country
Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution
That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature
Such a doctrine can have no application to a field where the legislature is supreme
That is why the doctrine of due process of law is quite different in England where Parliament is supreme
This difference is pointedly described by Mathews J in Joseph Hurtado vs People of California 1 at p 531 The concessions of Magna Charta were wrung from the King as guarantees against oppression and usurpation of his prerogatives
It did not enter into the minds of the barons to provide security against their own body or in favour of the commons by limiting the power of Parliament so that bills of attainder ex post facto laws laws declaring forfeitures of estates and other arbitrary Acts of legisla tion which occur so frequently in English history were never regarded as inconsistent with the law of the land for notwithstanding what was attributed to Lord Coke in
Bonham s 1  316 case  118 a the omnipotence of Parliament over the Common Law was absolute even against common right and reason
The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons
In this country written Constitutions were deemed essen tial to protect the rights and liberties of the people against the encroachments of power delegated to their gov ernments and the provisions of Magna Charta were incorporat ed in the bills of rights
They were limitations upon all the powers of government legislative as well as executive and judicial
 This basic distinction between the two systems should never be lost sight of if confusion of thought is to be avoided
Although our Constitution has imposed some limita tions on the legislative authorities yet subject to and outside such limitations our Constitution has left our Parliament and the State Legislatures supreme in their respective legislative fields
In the main subject to the limitations I have mentioned our Constitution has preferred the supremacy of the Legislature to that of the Judiciary
The English principle of due process of law is therefore more in accord with our Constitution than the American doctrine which has been evolved for serving quite a differ ent system
The picturesque language of Bronson J quoted above while that is quite appropriate to the American Constitution which does not recognise the supremacy of the Congress is wholly out of place in and has no applica tion to a Constitution such as ours which subject only to certain restrictions recognises the supremacy of the Legis latures in their respective fields
In the next place it is common knowledge that our Constitution makers deliberate ly declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words  except in due process of law that were in the original draft by the more specific expression except in accordance with procedure established by law
 To try to bring in the American doctrine in spite of this fact will be to stulti fy the intention of the Constitution as expressed in 317 article 21
In the third place in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court
Again even the all pervading little word due does not find a place in article 21 so as to qualify the procedure
It speaks of procedure and not due procedure and therefore the intellectual yardstick of the Court is definitely ruled out
Finally it will be incongruous to import the doctrine of due process of law without its palliative the doctrine of police powers
It is impossible to read the last mentioned doctrine into article 21
It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of natural justice as adopted by the American doctrine of due process of law and the unbending rigidity of mere State made laws
h is said that we have our Code of Criminal Procedure which embodies within its provisions certain salutary principles of procedure and we must insist that those underlying principles should be regarded as procedure established or settled by our positive law
But who will say what are those fundamental principles What principles
do I reject as inessential and what shall I adopt as fundamental  What is fundamental to me today may not appear to be so to another Judge a decade hence for principles give way with changing social conditions
In America it was suggested that due process of law should be taken to mean the general body of common law as it stood at the date of the Constitution
In Bardwell vs Collins 1 it was negatived in the following words  Due process of law  does not mean the general body of the law common and statute as it was at the time the Constitution took effect for that would deny the legisla ture power to change or amend the law in any particular
 The Court however brought in principles of 1 318 natural justice under the due process clause
To sanctify what I may to day regard as the basic principles underlying our Code of Criminal Procedure will be to make them immuta ble and to prevent the legislature even to improve upon them
This is nothing but imposing on the legislature a limitation which the Constitution has not placed on it
I do not think it is a permissible adventure for the Court to undertake
It is a dangerous adventure for it will bring about stagnation which means ruin
We must accept the Con stitution which is the supreme law
The Constitution has by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22
To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be
Article 21 in my judgment only formulates a substan tive fundamental right to life and personal liberty which in its content is not an absolute right but is a limited right having its ambit circumscribed by the risk of its being taken away by following a procedure established by law made by the appropriate legislative authority and the proximate purpose of article 21 is not to prescribe any particular procedure
It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty
Under article 246 read with Entry 1 of the Concurrent List Par liament or any State Legislature could add more offences and create further means for taking away personal liberty
But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure
Again at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws
Those laws however provided a procedure of a sort which had to be followed
Therefore before the Constitution came into force personal liberty could be taken away 319 only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention
Power however has been given to Parliament and the State Legislatures under article 246 read with Entry 2 of the Concurrent List to make laws with re spect to Criminal Procedure
If that article stood by itself the Parliament or the State Legislature could repeal the whole of the Criminal Procedure Code and also do away even with the skeleton procedure provided in the Security Acts
If article 246 stood by itself then the appropriate legislative authority could have taken away the life and personal liberty of any person without any procedure at all
This absolute supremacy of the legislative authority has however been cut down by article 21 which delimits the ambit and scope of the substantive right to life and person al liberty by reference to a procedure and by article 22 which prescribes the minimum procedure which must be fol lowed
In this situation the only power of the Court is to determine whether the impugned law has provided some proce dure and observed and obeyed the minimum requirements of article 29
and if it has then it is not for the Court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the particular law however harsh unreasonable archaic or odious the provisions of that law may be
It is said that if this strictly technical interpreta tion is put upon article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights for every person s life and personal liberty will be at the mercy of the Legislature which by providing some sort of a procedure and complying with the few requirements of article 22 may at any time deprive a person of his life and liberty at its pleasure and whim
There are several answers to this line of argument
Article 21 as construed by me will if nothing else cer tainly protect every person against the executive and as such will be as much a fundamental right deserving 411 320 a place in the Constitution as the famous 39th Chapter of the Magna Charta was and is a bulwark of liberty in English law
It appears to me that article 21 of our Constitution read with article 32 also gives us some protection even against the legislative authority in that a person may only be deprived of his life and personal liberty in accordance with procedure which although enacted by it must at least conform to the requirements of article 22
Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21
Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21 for the very right conferred by that article is circumscribed by this possi bility or risk and therefore such law cannot be regarded as violating the provisions of article 13 2
Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States
Subject to the limitations I have mentioned which are certainly justiciable our Constitution has ac cepted the supremacy of the legislative authority and that being so we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred namely that the Bishop of Rochester s cook be boiled to death
If Parliament may take away life by providing for hanging by the neck logi cally there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil
A procedure laid down by the legislature may offend against the Court s sense of justice and fair play 821 and a sentence provided by the legislature may outrage the Court s notions of penology but that is a wholly irrelevant consideration
The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy
The Constitution is supreme
The Court must take the Constitu tion as it finds it even if it does not accord with its preconceived notions of what an ideal Constitution should be
Our protection against legislative tyranny if any lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself
The conclusion I have arrived at does not introduce any novelty for in many other Constitutions the supremacy of the legislature is recognised in the matter of depriving a person of his life liberty and property
The English Democratic Constitution is one in point
Take the Constitu tion of the Irish Free State
Article 40 4 i provides that no citizen shall be deprived of personal liberty save in accordance with law and article 50 5 guarantees that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law
The words in accordance with law in both the above clauses must mean the same thing and I have no doubt in my mind reading clause 5that it means in accordance with the State made law for we have not been referred to any rule prescribed by natural justice regulating searches of or entry into dwelling houses
Article 107 2 of the Czechoslovakian Constitution uses the words in accordance with law which read with clause 1 of that article obviously means the law to be made which will form part of the Constitution
Take the Constitution of the Free City of Danzig
Article74 of that Constitution which is in Part II headed Fundamental Bights and Duties provides as follows The liberty of the person shall be inviolable
No limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law
 322 The word law clearly cannot in the contextmcan princi ples of natural justice Again article 75 of that Consti tution protects the freedom of movement within the Free City and the right to stay and to settle at any place to acquire real property and to earn a living
It concludes by saying that this right shall not be curtailed without legal sanctions
Legal sanctions in this context can only mean sanctions of the City laws
Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution
Take the Japanese Constitution of 1946 from which our arti cle 21 is reputed to have been taken
Article XXXI of that Constitution says No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed except according to procedure established by law
 Surely the words except according to procedure established by law in their application to the imposition of criminal penalty must mean State made law and the same words in the same sentence in the same article cannot according to ordi nary rules of construction of statutes mean a different thing in their application to deprivation of life or liber ty
I am aware that it is not right to construe one Consti tution in the light of another and that is not my purpose when I refer to the other Constitutions but I do think that after reading the relevant provisions of other written Con stitutions one sees quite clearly that there is no pressing special reason applicable to or inherent in written Consti tutions which requires the importation of the principles of natural justice or of the American doctrine of due process of law into our Constitution
The several Constitutions referred to above have not adopted that American doctrine but have been content with leaving the life and liberty of their citizens to the care of the laws made by their legis latures
It is no novelty if our Constitution has done the same
For all these reasons in spite of the very able and attractive arguments of the learned counsel for the peti tioner which I freely acknowledge I am not convinced that there is any scope for the introduction into article 21 of our 323 Constitution of the doctrine of due process of law even as regards procedure
I may or may not like it but that is the result of our Constitution as I understand it
The learned Attorney General has referred to certain debates in the Constituent Assembly on the original clause which has now become article 21 not as evidence to be used in interpreting the language of article 21 but as disclos ing the historical background
His purpose he says is to show that the framers of our Constitution had the essential difference in the meaning of the phrases due process of law and according to procedure established by law clearly explained to them that they knew that the former implied the supremacy of the judiciary and the latter the supremacy of the legislature and with all that knowledge they deliber ately agreed to reject the former expression and adopt the latter
As in my opinion it is possible to interpret the language of article 21 on the ordinary rules of interpreta tion of statutes I do not think it is at all necessary to refer to the debates
As I do not propose to refer to or rely on the debates for the purposes of this case I express no opinion on the question of the admissibility or otherwise of the debates
I now pass on to article 22
The contention of learned counsel for the petitioner is that article 21 by reason of the last few words according to procedure established by law attracts the four requirements of the American proce dural due process of law as summarised by Willis to which reference has been made earlier and that those require ments except to the extent they have been expressly abro gated or modified by article 22 must be strictly followed before a person may be deprived of his life or personal liberties
I have already stated for reasons set forth above that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article
This being the conclusion I have arrived at the major premise assumed by learned coun sel for the petitioner is missing and this 324 line of argument does not begin and cannot be accepted
The learned Attorney General on the other hand
has at one stage of his argument urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22 4 to 7 which by themselves constitute a complete code
I am unable to accede to this extreme point of view also
The true posi tion as I apprehend it lies between the two extreme views
Article 21 to my mind gives protection to life and person al liberty to the extent therein mentioned
It does not recognise the right to life and personal liberty as an absolute right but delimits the ambit and scope of the right itself The absolute right is by the definition in that article cut down by the risk of its being taken away in accordance with procedure established by law
It is this circumscribed right which is substantively protected by article 21 as against the executive as well as the legislature for the Constitution has conditioned its depri vation by the necessity for a procedure established by law made by itself
While subclauses 2 to 6 of article 19 have put a limit on the fundamental rights of a citizen articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legislative lists
Under our Constitution our life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in article 19 and by the checks put upon the State by articles 21 and 22
preventive detention deprives a person of his personal liberty as effectively as does punitive detention and therefore personal liberty circum scribed as it is by the risk of its being taken away re quires protection against punitive as well as preventive detention
The language of article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention
It protects a person against preventive detention by the executive without the sanction of a law made by the legislature
It prevents the legislature from taking away a person s personal liberty except in accordance with procedure established by law although such 325 law is to be by itself
If as contended by the learned Attorney General and held by me article 19 only protects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if as contended by the learned Attorney General article 21 does not protect a person against preventive detention then where is the protection for life and personal liberty as substantive rights which the procedural provisions of arti cle 22 may protect  What is the use of procedural protec tion if there is no substantive right  In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural pro tection
Clauses 1 and 2 of article 22 lay down the procedure that has to be followed when a man is arrested
They ensure four things a right to be informed regarding grounds of arrest b right to consult and to be defended by a legal practitioner of his choice c right to be produced before a magistrate within 24 hours and d freedom from detention beyond the said period except by order of the magis trate
These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis
Some of these salutary protections are also to be found in our Code of Criminal Procedure
If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses 1 and 2 of article 22  Why this unnecessary overlapping  The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and person al liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook
This is so far as punitive detention is concerned
But clause 3 of article 22 expressly provides that none of the procedure laid down in clauses 1 and 2 shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention
It is thus expressly 326 made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him
Such being the express provision of our Constitution nobody can question its wisdom
So I pass on
Clauses 4 5 6 and 7 of article 22 in terms relate to preventive detention
Article 246 authorises the appropriate legislature to make a law for preventive deten tion in terms of Entry 9 in List I andor Entry 3 in List III of the Seventh Schedule
On this legislative power are imposed certain limitations by article 22 4 to 7
According to this the legislature whether it be Parliament or a State Legislature is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub clauses a and b
The proviso to sub clause a and sub clause b refer to a law made only by Parliament under clause 7
Under clause 7 it is Parliament alone and not any State Legislature that may prescribe what are specified in the three subclauses of that clause
Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may authorise detention for more than three months unless the provisions of sub clauses aand b of clause 4 sanction such detention
Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provi sions of clause 7
In short clause 4 of article 22 provides a limitation on the legislative power as to the period of preventive detention
Apart from imposing a limitation on the legislative power clause 4 also pre scribes a procedure of detention for a period longer than three months by providing for an advisory board
Then comes clause 5
It lays down the procedure that has to be fol lowed when a person is detained under any law providing for preventive detention namely a the grounds of the order of detention must be communicated to the detenu as soon as may be and b the detenu must be afforded the earliest opportunity of making a representation against 327 the order
The first requirement takes the place of notice and the second that of a defence or hearing
These are the only compulsory procedural requirements laid down by our Constitution
There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so
If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can under our Constitution as I read it complain of the law providing for preventive detention
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention
Thus he does not insist on a prior notice before arrest for he recognises that such a require ment may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground
The provision in clause 5 for supplying grounds is a good substitute for notice
He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal
He will be satis fied if the tribunal or advisory board as it is called in article 22 of the Constitution is an impartial body and goes into the merits of the order of detention and its decision is binding on the executive government
He insists that the detenu must have a reasonable and effective oppor tunity to put up his defence
He does not insist on the assistance of counsel for that is expressly taken away by the Constitution itself
But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains
The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22 4 to 7
Those provisions are not justicia ble for they are the provisions of the Constitution itself which is supreme over everybody
42 328 The Court can only seek to find out on a proper construc tion what protection has in fact been provided
The Consti tution has provided for the giving of the grounds of deten tion although facts as distinguished from grounds may be withheld under clause 6 and the right of representation against the order of detention
It has provided for the duration of the detention
There the guaranteed fundamental procedural rights end
There is no provision for any trial before any tribunal
One cannot import the condition of a trial by any tribunal from the fact that a right of repre sentation has been given
The right to make representation is nothing more than the right to lodge objections as provided by the Danzig Constitution and the Weimar Constitu tion
The representations made will no doubt be considered by the Government
It is said a prosecutor cannot be himself the judge
Ordinarily the orders of detention will in a great majority of cases be made by the District Magistrate or Sub Divisional Officer or the Commissioner of Police
The representation of the detenu goes to the Government
Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials  Clause 5 does not imperatively provide for any oral representation which a hearing will entail
Indeed the exclusion of the provisions of clauses 1 and 2 negatives any idea of trial or oral defence
The Court may not by temperament and training like this at all but it cannot question the wisdom or the policy of the Constitution
In my judgment as regards pre ventive detention laws the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 4 to 7
There is no limitation as regards the substantive law
Therefore a preventive detention law which provides some procedure and complies with the require ments of article 22 4 to 7 must be held to be a good law however odious it may appear to the Court to be
329 Learned counsel for the petitioner contends that the impugned Act does not comply with even the bare requirements of article 22 4 to 7
It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads
In other words it is contended that Parliament has not legislated at all but has delegated its legislative powers to the executive authorities
I do not think there is any substance in this contention
In the first place this is not an objection as to procedure but to substantive law which is not open to the Court s scrutiny
In the next place this contention over looks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law
The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authori ty
It is next urged that section 12 of the Act does not comply with the requirements of clause 7 of article 22 for two reasons namely i that clause 7 contemplates a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months and ii that under clause 7 Parliament must prescribe both the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months
As regards the first point I do not see why Parliament must make two laws one laying down the principles for longer detention and another for detention for such longer period
It may be that a State cannot provide for longer detention until Parliament 330 has made the law but I can see no reason why Parliament cannot do both by the same Act
In fact clause 4 b contemplates the detention itself to be in accordance with the provisions of any law made by Parliament under sub clauses a and b of clause 7
Therefore the detention can well be under the very law which the Parliament makes under sub clauses a and b of clause 7
As to the second point the argument is that Parliament has a discre tion under clause 7 to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months
I am unable to construe clause 7 a in the way suggested by learned counsel for the petitioner
It is an enabling provision empowering Parliament to prescribe two things
Parliament may prescribe either or both
H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football it obviously does not mean that tim child if he chooses to play at all must play both table tennis and badminton
It is an option given to the child
Likewise the Constitution gives to Parliament the power of prescribing two things
Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both
Clause 7 a in my opinion has to be read distributively as follows The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parlia ment may prescribe the class or classes of cases in which a person may be detained for a period longer than three months
That appears to me to be consonant with sound rules of construction
Further the circumstances and the class or classes of cases may conceivably coalesce
Indeed the Full Bench case No 1 of 1950 before the Calcutta High Court Kshitindra Narayan vs The Chief Secretary itself indicates that the same provision may be read as circumstances or as a classification
In that case learned counsel conceded that section 12 had prescribed the circumstances but his com plaint was that it had not 331 prescribed the class or classes of cases
The majority of the Court repelled this contention
One learned Judge howev er held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances
It is therefore clear that the classification itself may indicate the circumstances
Again the classification may be on a variety of bases
It may be according to provinces the detenus come from
It may be according to the age of the detenus
It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in
In this case Parliament has taken five out of the six legislative heads and divided them into two categories
The detenus are thus classified ac cording to their suspected object or activities endangering the several matters specified in the section
I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads for each legislative head has a specific connotation well understood in law
If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months
I do not consider it right as a matter of con struction to read any further limitation in clause 7 a of article 22
In my judgment Parlament was not obliged under clause 7 to prescribe both circumstances and classes and in any case has in fact and substance prescribed both
I am conscious that a law made by Parliament under article 22 7will do away with the salutary safeguard of the opinion of an advisory board
But it must be remembered that our Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose
Our preference for an advisory board should not blind us to this aspect of the matter
It is true that circumstances ordinarily relate to extraneous things like riots commotion 332 political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with
It is also urged that they had in mind that the more dangerous types of detenus should be denied the privi lege of the advisory board
I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable
But that is crying for the ideal
The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution makers who by the way are the very persons who made this law
It is not for the Court to improve upon or add to the Constitution
If the law duly made by Parlia ment is repugnant to good sense public opinion will compel Parliament to alter it suitably
Finally an objection is taken that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropriate proceedings
Both clauses 1 and 2 of article 32 speak of enforcement of rights conferred by Part III
The right to move this Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue direc tions or orders or writs for the enforcement of any of such rights
In order therefore to attract the application of article 32 the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32
I have already said that article 19 does not deal with the freedom of the person
I have also said that articles 21 and 22 provide for protection by insisting on some procedure
Under article 22 5 the authority making the order of detention is enjoined as soon as may be to communicate to the detenu the grounds on which that order has been made
This provision has some purpose name ly that the disclosure of the grounds will afford the detenu the 333 opportunity of making a representation against the order
Supposing the authority does not give any grounds at all as distinct from facts referred to in Clause 6
Surely the detenu loses a fundamental right because he is prevented from making a representation against the order
of deten tion
Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention
Then also the detenu can legitimately complain that his right has been infringed
He can then come to the Court to get redress under article 32 but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the Court cannot judge whether he has actually got the grounds which he is entitled to under article 22 5
such a case the detenu may well complain that both his substantive right under article 22 5  as well as his right to constitutional remedies under article 32 have been in fringed
He can complain of infringement of his remedial rights under article 32 because he cannot show that there has been an infringement of his substantive right under article 22 5
It appears to me therefore that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the Constitution and is therefore void under article 13 2
That section howev er is clearly severable and cannot affect the whole Act
On this question the views of Meredith CJ and Das J of Patna in Criminal Miscellaneous No 124 of 1950 Lalit Kumar Barman vs The State and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No 1 of 1950 Kshitindra Narayan vs The Chief Secretary appear to be correct and sound
For the reasons I have given above in my opinion the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court
The petitioner before us does not complain that he has not got proper grounds
Further the period of his detention under the impugned Act 334 has not gone beyond three months and in the circumstances this application should in my opinion stand dismissed
Petition dismissed
Agent for the petitioner section Subrahmanyam
Agent for the State of Madras and Union of India PA Mehta


Summary:
The petitioner who was detained under the Preventive Detention Act Act IV of 1950 applied under article 32 of the Constitution for a writ of habeas corpus and for his release from detention on the ground that the said Act contravened the provisions of articles 13 19 21 and 22 of the Constitu tion and was consequently ultra rites and that his detention was therefore illegal Held per KANIA CJ PATANJALI SASTRI MUKHERJEA and DAS JJ
FAZL ALI and MAHAJAN JJ
dissentinq that the preventive Detention Act 1950 with the exception of Sec
14 thereof did not contravene any of the Articles of the Constitution and even though Sec
14 was ultra rites inas much as it contravened the provisions of article 99 5 of the Constitution as this section was severable from the remaining sections of the Act the invalidity of Sec
14 did not affect the validity of the Act as a whole and the detention of the petitioner was not illegal
FAZL ALl and MAHAJAN JJ
Section 12 of the Act was also ultra vires and since it contravened the very provi sion in the 89 Constitution under which the Parliament derived its compe tence to enact the law the detention was illegal
Held by the Full Court KANIA CJ FAZL ALI PATANJALI SASTRI MAHAJAN MUKHERJEA and DAS JJ Section 14 of the  contravenes the provisions of article 99
5 of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention and is to that extent ultra vires and void
Per KANIA CJ PATANJALI SASTRI MAHAJAN MUKHERJEA and DAS JJ
FAZL ALI J dissenting
Article 19 of the Consti tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub cls
a to e and g in general and sub cl
d in particular of cl
1 of article 19 may be restricted or abridged and the constitution al validity of a law relating to such detention cannot therefore be judged in the light of the test prescribed in el
5 of the said Article
DAS J Article 19 1 postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under sub cls
a to e and g of article 19 1 likewise if a citizen s property is compulsorily ac quired under article 31 he cannot claim the right under sub el
f of article 19 1 with respect to that property
In short the rights under sub cls
a to e and g end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc
19 5
MAHAJAN J Whatever be the precise scope of article 19 1 d and Art195 the provisions of article 195 do not apply to a law relating to preventive detention inasmuch as there is a special self contained provision in article 22 regulating it
FAZL ALIJ
Preventive detention is a direct infringe ment of the right guaranteed in article 19 1 d even if a narrow construction is placed on the said sub clause and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by article 19 5
Per KANIA CJ PATANJALI SASTRI MUKHERJEA and DAS JJ
FAZL ALl J dissenting
The concept of the right to move freely throughout the territory of India referred to in article 19 1 d of the Constitution is entirely differ ent from the concept of the right to personal liberty referred to in article 21 and article 19 should not therefore be read as controlled by the provisions of article 21
The view that article 19 guarantees substantive rights and article 21 prescribes the procedure is incorrect
DAs J Article 19 protects some of the important attributes of personal liber ty as independent rights and the expression personal liber ty is used in article 21 as a compendious term 90 including within Rs meaning all varieties of rights which go to make up the personal liberties of men
FAZL ALl J Even if it be assumed that article 19 1 d does not refer to  personal liberty and that it bears the restricted meaning attributed to itthat is to say R signi fies merely the right to move from one locality to another preventive detention must be held to affect this limited right of movement directly and substantially
One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits
The same consideration applies to the cases of persons who are interned or externed
Hence externment interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the others
Per KANIA C J  PATANJALI SASTRI and DAS 35
MAHAJAN 3
dissenting
Article 22 does not form a complete code of constitutional safeguards relating to preventive detention
To the extent that provision is made in article 99 it cannot be controlled by article 91 but on points of procedure which expressly or by necessary implication are not dealt with by article 22 article 91 will apply
DAS J article
21 protects substantive rights by requiring a procedure and article 99
lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook
MAHAJAN J article
99 contains a self contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of article 21
The principles underlying article 21 are however kept in view in article 22 and there is no conflict between these articles
MUKHERJEA J Even assuming that article 22 is not a self contained code relating to preventive detention and that article 21 would apply it is not permissible to supplement article 22 by the application of rules of natural justice
FAZL ALI J article
22 does not form an exhaustive code by itself relating to preventive detention
Parliament can make further provi sions and if it has done so article 19 5 may be applied to see if those provisions have transgressed the bounds of reasonableness
Per KANIA CJ MUKHERJEA and DAS JJ
FAZL ALI J dis senting
In article 91 the word law has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice and procedure established by law means procedure established by law made by the State that is to say the Union Parliament or the Legislatures of the States
It is not proper to construe this expression in the light of the meaning given tothe expression due process of law in the American Constitution by the Supreme Court of America
FATANJALI SASTRI cl Law in article 21 does not mean the jus naturale of civil law but means 91 positive or State made law
Procedure established by law does not however mean any procedure which may be prescribed by a competent legislature but the ordinary well estab lished criminal procedure ie those settled
usages and normal modes of procedure sanctioned by the Criminal Proce dure Code which is the general law of criminal proce dure in this country
The only alternative to this con struction if a constitutional transgression is to be avoid ed is to interpret the reference to law as implying a constitutional amendment pro tanto for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra vening article 13 2
FAZL ALI J
There is nothing revolutionary in the view that procedure established by law must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law and which have been stated by the American Courts and jurists as consisting in 1 notice 2 opportunity to be heard 3 impartial tribunal and 4 orderly course of procedure
These four principles are really different aspects of the same right namely the right to be heard before one is condemned
Hence the words procedure established by law  whatever its exact meaning be must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal
Per KANIA CJ FAZL ALI PATANJALI SASTRI MAHAJAN and DAS JJ
Section 3 of the  does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature and is not there fore invalid on this ground
The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with is not a ground for holding that it is invalid
FAZL ALI J Section 3 is however a reasonable provision only for the first step ie for arrest and initial detention and must be followed by some procedure for testing the so called subjective satisfaction which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds
Per KANIA C J MAHAJAN and DAS JJ
Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation
Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by article 22
Per KANIA CJ and MAHAJAN J
The provision contained in Sec
11 that a person may be detained for such period as the 12 A 92 State thinks fit does not contravene article 22 7 and it is not therefore invalid
Per KANIA
CJ PATANJALI SASTRI MUKHERJEA and DAS JJ
FAZL ALI and MAHAJAN JJ
dissenting
Article 22 7 means that Parliament may prescribe either the circumstances under which or the class or classes of cases in which a person may be detained for a period longer than three months without reference to an advisory board
It is not necessary that the Parliament should prescribe both
The matters referred to in clauses a and b of sub see
1 of Sec 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with article 22 7 DAS J Parliament has in act and substance prescribed both in clauses a and b of sub sec
1 of Sec 12
FAZL ALI and MAJAN JJ
Article 22 7 Means that both the circumstances and the class or classes of cases which are two different expressions with different meanings and connotations should be prescribed and the prescription of one without the other will not be enough
The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els
a and b of sub see
1 of Sec12 does not amount to prescribing the circumstances under which or the class or classes of cases in which a person can be detained for more than three months
Per KANIA CJ
While it is not proper to take into consideration the individual opinions of members of Parlia ment or Convention to construe the meaning of a particular clause when a question is raised whether a certain phrase or expression was up for consideration at all or not a reference to the debates may be permitted
PATANJAYLI SASTRI J
In construing the provisions of an Act speeches made in the course of the debates on the bill should not be taken into consideration
MUKHERJEA J
In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly but a higher value may be placed on the report of the Drafting Committee