21 22 and 44 of 1951
1  3  2   4 453 Applications under article 32 of the Constitution praying for the issue of writs in the nature of habeas corpus
Hardayal Hardy for the petitioners in Petitions Nos 21 and 22 Gopal Singh for the petitioner in Petition No 44
SM Sikri for the respondents
April 6
The following judgments were deliv ered
PATANJALI SASTRI J These three petitions have been pre sented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus for release of the petitioners who are respectively the President VicePresident and Secretary of the Hindu Mahasabha of the Delhi State
The petitioners were arrested on 22nd August 1950 by order of the District Magistrate Delhi made under sub section 2 read with clause a sub clause i of sub section 1 of section 3 of the hereinafter referred to as the Act
The order ran as follows Whereas I Rameshwar Dayal District Magistrate Delhi am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so I Rameshwar Dayal District Magistrate Delhi hereby order the detention of   under sub section 2 of section 3 1 a ii of the 
Given under my seal and signature
The grounds of detention communicated to the petitioners were in identical terms save as to the dates on which the speeches were said to have been made and read thus In pursuance of section 7 of the you are hereby informed that the grounds on which the detention order dated 22nd August 1950 has been made against you are that your speeches generally in the past and particularly on 
August 454 1950 at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby preju dice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is neces sary to make the said order
The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution but the petitions were dismissed
It appears to have been con tended before the learned Judges Khosla and Falshaw JJ who heard those petitions that although this Court held in AK Gopalan vs The State of Madras 1 that the provisions of section 3 of the Act were constitutional and valid detention under that section was ultra vires and illegal where as here it was based on the ground of making speech es prejudicial to the security of the State or the mainte nance of public order
This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another vs The State of Delhi 2 and Romesh Thappar vs The State of Madras 3
This contention was rejected on the ground that no such proviso could be read into section 3 on the strength of the later decisions referred to above which related to a different point viz the scope of authorised restrictions on the right to freedom of speech conferred by article 19 1
Falshaw J with whom Khosla J concurred proceeded however to draw attention to what he conceived to be an  anomaly   while a State Government should not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre censor ship of news the Government should for the same object be entitled to place a person under preventive detention which is even greater restriction on personal liberty than any restriction on a newspaper ever could be
This distinction appeared to the learned Judge to be illogical and he thought that there was an apparent conflict between the decisions of this Court in Gopalan s case 1 and the other cases which could only be resolved by this Court
It 1  3   2  455 would be well the learned Judge concluded if the point were raised in this form at an early date in the Supreme Court
No wonder that after this encouragement the peti tioners have preferred these petitions raising the same contention before us
On behalf of the petitioners Mr Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be considered to be prejudicial to the maintenance of public order for maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution as held by this Court in the Cross roads1 and the Organizer2 cases
It is true that in those cases this Court decided by a majority of 5 to 1 that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause 2 of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order
But it will be noticed that the Statutory provi sions which were there declared void and unconstitutional authorised the imposition in the one case of a ban on the circulation of a newspaper and in the other of pre censor ship on the publication of a journal
No question arose of depriving any person of his personal liberty by detaining him in custody whereas here as in Gopalan s cases the Court is called upon to adjudge the legality of the deten tion of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19 1 and its deprivation would result in the extinction of those freedoms the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which 1  3  2  59 456 alone they could be taken away or abridged
The interpreta tion of these articles and their correlation were elaborate ly dealt with by the full Court in Gopalan s case1
The question arose whether section 3 of the Act was a law impos ing restrictions on the right to move freely throughout the territory of India guaranteed under article 19 1 d and as such was liable to be tested with reference to its reasonableness under clause 5 of that article
It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22 and as section 3 satisfied those requirements it was con stitutional
If the learned Judges in the High Court had paid close attention to the judgments delivered in this Court they would have found that there was nothing illogi cal in that view and no conflict between the decisions in that case and in the other cases to which reference has been made
The observations of the Chief Justice in Gopalan s case1 make the position quite clear  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 ghave 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 argument 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 2 to 6 permit ting abridgement of the rights connected with each of them punitive detention under several sections of the Penal Code eg for theft cheating forgery and even 1  457 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 preconceived notions
So read it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses
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 legislation 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 deten tion his right under any of these sub clauses is abridged the question of the application of article 19 does not arise
The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid on the mode of the detenu s life
On that short ground in my opinion this argument about the infringement of the rights mentioned in article 19 1 generally must fail
Any other construction put on the article it seems to me will be unreasonable
1 Similar conclusions expressed by the other learned Judges will be found at pages 194 229 256 and 305
It follows that the petitions now before us are governed by the decision in Gopalan s case1 notwithstanding that the petitioners  right under article 19 1a is abridged as a result of their detention under the Act
The anomaly if anomaly there be in the resulting position is inherent in the structure and language of the relevant articles whose meaning and effect as expounded by this Court by an over whelming majority in the cases referred to above must now be taken to be settled law and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re agitate the points thus settled
1   100 101
458 Mr Hardy next contended that in view of the recent decision of this Court in The State of Bombay vs Atma Ram Sridhar Vaidya1 the grounds of detention communicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their representations to the Chief Commissioner Delhi and the requirements of clause 5of article 22 not having thus been complied with the petitioners were entitled to be set at liberty
Accord ing to Mr Hardy it was not sufficient that the time and place of the alleged speeches and their general effect were indicated but it was also necessary that the offending passages or at least the gist of them should be communicated in order to enable the petitioners to make effective repre sentations
In the case relied on this Court no doubt held by a majority that though the first part of article 22 s which casts an obligation on the detaining authority to communicate the grounds of the order of detention would be sufficiently complied with if the deductions or conclusions of facts from facts on which the order was based were disclosed the latter part of the clause which confers on the person detained the right of making a representation against the order imposed by necessary implication a duty on the authority to furnish the person with further particu lars to enable him to make his representation
It was further held that the sufficiency of this second communica tion of particulars was a justiciable issue the test being whether it is sufficient to enable the detained person to make a representation which on being considered may give relief to the detained person
 While the communication of particulars should subject to a claim of privilege under clause 6 be as full and adequate as the circumstances permit it did not however follow from clause 6 that what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right
A wide latitude is left to the authorities in the matter of disclosure Referring to the use of the term 1  459 vague in this connection
it was remarked If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague This decision does not in our opinion support the broad proposition contended for by Mr Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained the detaining authority should communicate to the person the offending passages or at least the gist of such passages on pain of having the order quashed if it did not
In the cases now before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect being such as to excite disaffection between Hindus and Muslims was also stated
It is difficult to see how the communication of particular passages or their substance one of the petitioners denied having made any speech on the day specified was necessary in addition to the particulars already given to enable the petitioners to make their representations
It should be remembered in this connection that the Court is not called upon in this class of cases to judge whether or not the speech or speeches in question constituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person constituted an offence under those sec tions
That is a matter for the detaining authority to be satisfied about
Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be made only before the executive authori ties
In such circumstances the suggestion that without the communication of the offending passages or their substance the petitioners were not in a position to make their repre sentations 460 to the executive authorities sounds unreal and is devoid of substance
It may be possible to conceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them but the present cases are not of such peculiar character
On the other hand cases have come before this Court where speeches were alleged to have been made after midnight at secret gatherings of kisans and workers inciting them to violence crime and disorder
Such allegations could only be based in most cases on information received by the executive authorities from confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered
To hold that article 22 5 requires that wherever detention is grounded on alleged prejudicial speeches the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate
In the case of these petitioners no doubt the speeches are said to have been made at public meetings and it is not suggest ed on behalf of the respondents that no record was made of the speeches so that the details asked for could have been furnished
The omission to do so for which no reason is disclosed in these proceedings is regrettable as it has given rise to avoidable grievance and complaint
The au thorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above In numerous cases that have been brought to our notice we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order
Instead of giving the information with reasonable details there is a deliberate attempt to use the minimum number 461 of words in the communication conveying the grounds of detention
In our opinion this attitude is quite deplora ble
This however does not affect our conclusion in these cases that the grounds communicated to the petitioners contain sufficient particulars to enable them to make their representations to the authority concerned and that the requirements of article 22 5 have thus been complied with
It is also urged that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention
This point is now concluded against the petitioners by the decision of this Court in Ujager Singh vs The State of Punjab 1 and Jagjit Singh vs The State of Punjab 2 where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder such orders could not be said to be of indefinite duration and unlawful on that ground
Lastly it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power and that the orders of detention were made for the collateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do with the maintenance of public order
Allegations of mala fide conduct are easy to make but not always as easy to prove
The District Magistrate has in his affidavit filed in these proceedings stated that from the materials placed before him by persons experienced in investigating matters of this kind he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order and he has emphatically repudi ated the purpose and motive imputed to him
We have thus allegations on the one side and denial on the other and the petitioners made no attempt to discharge the burden which undoubtedly lay upon them to prove that the District 1 Petition No 149 of 1950
2 Petition No 167 of 1950
462 Magistrate acted mala fide in issuing the orders of deten tion
The petitions are dismissed
MAHAJAN J
These three petitions under article 82 of the Constitution of India were presented by Prof Ram Singh Bal Raj Khanna and Ram Nath Kalia all three of whom were arrested and placed in detention on the 22nd August 1950 under the orders of the District Magistrate of Delhi under the 
The petitioners are respectively the President Vice President and the Secre tary of the Delhi State Hindu Mahasabha
The grounds of detention supplied to them are almost identical
Those furnished to Prof Ram Singh read as follows  In pursuance of section 7 of the  you are hereby informed that the grounds on which the detention order dated August 22 1950 has been made against you are that your speeches generally in the past and partic ularly on the 13th and 15th August 1950 at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order
You are further informed that you are entitled to make a representation against your detention to the State Govern ment that is the Chief Commissioner Delhi
 The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Khanna only the 15th August 1950 is mentioned as the date on which the public speech was made and in the case of the third petitioner it is only the 13 th August 1950
Mr Hardy on behalf of the petitioners
inter alia urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not suffi cient to enable them to make an effective representation to the State Government against 463 their detention and that being so their detention is ille gal
An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners  speeches generally and particularly those made on the 13th and 15th August 1950 at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims
No particulars of the offending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit
Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the 13th and 15th respectively by the other two
So far as the earlier speeches are concerned it is not even stated on what occasions on what dates and during what years were those speeches made or delivered
After a refer ence to the dates of the two speeches the conclusion drawn by the District Magistrate has been mentioned
The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right conferred on the petitioners by article 22 5 of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this infer ence is not justified
After considerable thought I have reached the decision that these cases fall within the ambit of the decision of this Court in The State of Bombay vs Atma Ram Shridhar Vaidya 1
In that case certain general principles ap plicable to cases of this nature were stated by the learned Chief Justice who delivered the majority judgment in the following terms 1 That if the representation has to be intelligible to meet the charges contained in the grounds the information conveyed to the detained person must 1  60 464 be sufficient to attain that object
Without getting infor mation sufficient to make a representation against the order of detention it is not possible for the man to make the representation
Indeed the right will be only illusory but not a real right at all
2 That while there is a connection between the obliga tion on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation the test to be applied in respect of the contents of the grounds for the two purposes is quite different
For the first the test is whether it is sufficient to satisfy the authority
For the second the test is whether it is sufficient to enable the detained person to make the representation at the earli est opportunity
On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 225 is established he is bound to be released by the court
3 That it cannot be disputed that the representation mentioned in the second part of article 225 must be one which on being considered may give relief to the detaining person
It was pointed out that in the numerous cases that had been brought to the notice of the court it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order and that instead of giving the information with reasonable details there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention and that such an attitude was quite deplorable
In my opinion these observations have an apposite application to the grounds furnished to the petitioners in the present cases
The speeches alleged to have been made by the petitioners were made in public meetings and could not be described as of a confidential nature and no privi lege in respect of them was 465 claimed under article 22 6 of the Constitution
That being so the material on the basis of which the District Magistrate drew the inference that these speeches would cause or were likely to cause disaffection amongst Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation which on being considered may give relief to them
For that purpose either the words used by them or the substance of the speeches should have been communicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that no reasonable person could draw an inference from them that those were likely to cause hatred and enmity between the two communi ties
The sufficiency of the material supplied is a justi ciable issue though the sufficiency of the grounds on which the detaining authority made up his mind is not a justicia ble issue
In my opinion in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would not be able fully to exercise their fundamental right of making a representation and would not be able to furnish a proper defence to the charge made against them
Envisaging oneself in the position of a person asked to draw out a written representation on behalf of the detenus on the materials supplied to them the effort could not proceed beyond a bare denial of the speeches having been made or a bald statement that no words were used which could possibly excite disaffection between Hindus and Mus lims
Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody
Without a knowledge of the offending words or passages or their substance it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection 466 amongst Hindus and Muslims
The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code
Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed
In the words objected to were known the representation on behalf of the detenus could easily have been drawn up with the help of judicial precedents and reasoning considered good in those cases
Again without knowing the substance of the offending words from which the inference has been drawn by the detaining authority it is not even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or concern the propagation of some political creed to which no objection could be taken
As regards the two speeches alleged to have been given by the detenus if the allegation that they were such as to excite disaffection between Hindus and Muslims is correct the detenus were guilty of the offence under section 153A of the Indian Penal Code and could not only have been punished for the offence under that section but could also have been kept out of harm s way for the future by that procedure
A charge sheet under that section or in a trial under section 124A which uses analo gous language would have been defective if it did not men tion the substance of the speeches alleged to have been made by the person charged
Vide Chint Ram vs Emperor 1 Chidambaram Pillai vs Emperor2 Mylapore Krishnaswami vs Emperor3 In some of these cases the charge was in substance similar to the charge here
If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein a fortiori the material supplied in a preventive 1 AIR 1931 Lah 186
3 ILR 2 ILR 467 detention case on a similar charge should be regarded as insufficient when a man has not even a right of being heard in person and has merely to defend himself by means of a written representation
It has to be remembered in this connection that the phrase excite disaffection amongst Hindus and Muslims is of a very general nature and an inference of this kind may easily have been drawn on materi al which would not warrant such an inference
No reason whatsoever has been stated in the affidavit of the District Magistrate for not disclosing the words used by the detenus even after this length of time and from which he drew the conclusions on the basis of which he has kept the petition ers under detention for a period well over six months or more
For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal
I accordingly order the release of the petition ers
On the other points argued in the case I agree with judgment of Sastri J BOSE J
I agree with my brother Mahajan whose judgment I have had the advantage of reading and with the utmost respect find myself unable to accept the majority view
I am of opinion that these petitioners should all be released on the ground that their detentions are illegal
I do not doubt the right of Parliament and of the execu tive to place restrictions upon a man s freedom
I fully agree that the fundamental rights conferred by the Constitu tion are not absolute
They are limited
In some cases the limitations are imposed by the Constitution itself
In others Parliament has been given the power to impose fur ther restrictions and in doing so to confer authority on the executive to carry its purpose into effect
But in every case it is the rights which are fundamental not the limita tions and it is the duty of this Court and of all courts in the land to guard and defend these rights jealously
It is our duty and privilege to see that rights which were 468 intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms and in the case of the executive to see further that it does not travel beyond the powers conferred by Parliament
We are here to preserve intact for the peo ples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cher ish to the very fullest extent of the guarantee and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action
It is the right to personal freedom which is affected here what the Constitution calls the right to move freely throughout the territory of India
 Now I do not for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention
Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely the regrettable necessity to do so is to my mind undoubted
The safety of the State which is para mount requires it and in any event the Constitution allows it but and this is important subject to limita tions
So far as the Constitution is concerned it has given Parliament the power to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item a in List III and I have no doubt that the legislation sought to be impugned here is intra vires
But I am unable to hold that the executive action taken in these cases on the strength of that legislation is within the law
The executive has no power to detain except within the four corners of the Constitution and the Act now challenged
In my opinion it has not kept itself within those limits
The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right nor the desire to go behind them
My brother Mahajan has 469 set out his view of the law which these cases have settled
I respectfully agree with him and will not cover the same ground
But I do wish to say this
I am not prepared to place any narrow or stilted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it
If it were permissible to go behind file Constitution and enquire into the reason for the provi sions dealing with the fundamental rights one would find them bound up with the history of the fight for personal freedom in this land
But that is not permissible and is irrelevant
What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is cribbed cabined and confined
I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights
I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable
But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey namely to confer the fullest possible degree of personal liberty upon the subject consistent with the safety and welfare of the State
My Lord the Chief Justice has pointed out in The State of Bombay vs Atma Ram Shridhar Vaidya 1 that the information supplied to the detenu must be sufficient to enable him to meet the charges contained in the grounds given to him
and that without that the right would be illusory
Are the present cases covered by that rule  I do not think they are
Put at their highest the grounds set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were
1  470 such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi
 I have no quarrel with the details regarding the date and place but I do not consider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars
Now I fully agree that each case will have to be decided on its own facts so far as this is concerned
But when weighing the circumstances this must be borne in mind
The detenu has no right of personal appearance before the Advisory Board or other revising authority nor can he be represented by counsel
The Board or other authority can deal with his representation without hearing him or anyone on his behalf
Therefore his only hope of being able to convince the Board lies in the explanation he offers
But how can anyone give a fair explanation of his conduct unless he is told with reasonable plainness what he has done and in the case of a speech the words used are everything
They have been called verbal acts in another connection
Now I take it to be established that Government is bound to give a detenu rea sonable particulars of the acts complained of when conduct is in question
Why should a different rule obtain when the acts complained of are verbal  It was contended in the argument that the man who makes the speech is in a position to know what he said and so is not at a disadvantage
But that in my opinion is not the point
He may know what he said but he cannot know what the authorities think he said unless they give him some reasona ble inkling of what is in their minds
It has to be remem bered that what the Advisory Board has before it is not necessarily the words employed or even  their substance but what the authorities say the man said
This has to be viewed from two angles
The first is whether the reports handed in to the authorities are Correct
Even with the utmost good faith mistakes do 471 occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B But unless A knows that is what happened it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation
The next point is this
When a man is told that his speech excited disaffection and so forth he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him
If the premises on which the conclusion is based are faulty the conclusion will be wrong
But even if the premises are correct the process of reasoning may be at fault
In either event no representation of value can be made without a reasonably adequate knowledge of the premises
Envisage for a moment the position of the Board
In the ordinary course it would have before it a speech with the offending passages in full or at any rate the gist of them
From the other side it would have a bare denial for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based
In most cases that sort of representation would have very little value
Consider this illustration
Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said nothing objectionable but that unknown to him the police through a perfectly bona fide mistake had imputed to him certain offensive words used by another speaker
What would be the value of a detenu saying I said nothing objectionable and that is almost all he can say in such a case
He cannot envisage the mistake and say Oh yes that was said but not by me
It was said by A or B Consider a second illustration where the detenu had quoted a well known living authority
I can conceive of cases where words in the mouth of A might be considered objectionable by some but would never be condem ned in the mouth of B It might make a world of difference to 472 the detenu if he could explain the source of the passages complained of in his speech
But it might be very difficult for him to envisage the possibility of objection being taken to anything coming from the source from which he quoted
I am anxious not to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government but I do conceive it to be our duty to give a construction which while falling strictly within the ambit of the language used is yet liberal and reasonable just to the detenu fair to the Government
And after all what does a construction such as I seek to make import  It places no great or impossible strain on the machinery of Government
All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of the thought time and energy which the law compels in the case of even the meanest criminal who is arraigned before the Courts of this country
The fact that there is absent in the case of these persons all the usual safeguards the glare of publicity the right to know with precision the charge against him the right to speak in his own defence is all the more reason why Government should be thoughtful considerate and kind and should give them the maximum help
In any case that in my opinion is what the Constitution requires and I am not prepared to abate one jot or tittle of its rigours
My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case
One is Vaidya s case 1 and the other Lahiri s 2
In the latter the point whether the gist of the speech should be given was not considered
It seemed to have been assumed that it need not
But I am unable to accept that as authority for anything beyond the fact that was not consid ered necessary on the facts and in the circumstances of that particular case
As my Lord the Chief Justice pointed out in the earlier decision cited above the question of 1  2 Not reported 473 what is vague must vary according to the circumstances of each case
 It was also said there that the conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds ie mate rials on which the detention order was made
 It was further said Ordinarily the grounds  in the sense of conclusions drawn by the authorities will indicate the kind of prejudi cial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representa tion setting out his innocent activities to dispel the suspicion against him This envisages cases in which that would not be enough
It is therefore sufficient for me to say that in a case of this kind where the matter has to turn on the facts and circumstances of each case no useful purpose can be served by examining the facts of some other case for use as an analogy
In my opinion on the facts and circumstances of the present cases the grounds supplied were insufficient and the gist of the offending passages should have been supplied
The omission to do so invalidates the detention and each of the detenus is entitled to immediate release
Petitions dismissed
Agent for the petitioners in Petitions Nos 21  22 Ganpat Rai
Agent for the petitioner in Petition No 44 VPK Nambiyar


Summary:
The District Magistrate of Delhi being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so ordered the detention of the peti tioners under section 3 of the 
The grounds of detention communicated to the petitioners were that your speeches generally in the past and particu larly on the 13th and 15th August 1950 at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance 01 public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order
 The petitioners contended that under the Constitu tion the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of 452 speech guaranteed by article 19 1 and that the grounds commu nicated were too vague and indefinite to enable them to make a representation and the provisions of article 22 s of the Constitution were not complied with and their detention was therefore ultra vires and illegal Held by the Full Court KANIA CJ PATANJALI SASTRI MEHR CHAND MAHAJAN SR DAs and VIVIAN BOSE JJ that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 1 and its deprivation would result in the extinction of those free doms the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in articles 19 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged
Consequently even though a law which restricts freedom of speech and expression which is not directed solely against the undermining of the security of the State or its over throw but is concerned generally in the interests of public order may not fall within the reservation of cl
2 of article 19 and may therefore be void an order of preventive deten tion cannot be held to be invalid merely because the deten tion is made with a view to prevent the making of speeches
prejudicial to the maintenance of public order
The deci sions in Brij Bhushan and Another vs The State of Delhi 1 and Romesh Thappar vs The State of Madras2 are not incon sistent with the decision in AK Gopalan vs The State3
Held per KANIA
CJ PATANJALI SASTRI and SR DAS JJ
MEHR CHAND MAHAJAN and BOSE JJ
dissenting As the time and place at which the speeches were alleged to have been made and their general nature and effect
namely that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated they were not too vague or indefinite to enable the petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that article 22 8 was not complied with
Per CHAND MAHAJAN and BOSE JJ
contra In the absence of any indication in the grounds as to the nature of the words used by the petitioners in their speech es from which an inference has been drawn against them the petitioners would not be able fully to exercise their funda mental right of making a representation and as there were no such indications in the grounds supplied there was a non compliance with the provisions of el
5 article 22 and the detention was illegal
The State of Bombay vs Alma Ram Sridhar Vaidya4 applied