minal Appeal No 107 of 1965
Appeal by special leave from the judgment and order dated June 22 1965 of the Bombay High Court in Criminal Applica tion No 613 of 1965
Niren De Additional Solicitor General and B R G K Achar for the appellant
R K Garg D P Singh M K Ramamurthi and section C Agar wala for respondent No 1
The Judgment of the Court was delivered by Subba Rao J
Prabbakar Pandurang Sanzgiri who has been detained by the Government of Maharashtra under section 301b of the Defence of India Rules 1962 in the Bombay District Prison in order to prevent him from acting in a manner pre judicial to the defence of India public safety and maintenance of public order has written with the permission of the said Government a book in Marathi under the title Anucha Antarangaat Inside the Atom
The learned Judges of the High Court who had gone through the table of contents of the book
expressed their opinion on the book thus    we are satisfied that the manuscript book deals with the theory of elementary particles in in objective way
The manuscript does not purport to be a research work but it purports to be a book written with a view to educate the people and disseminate knowledge regarding quantum theory
 The book is therefore purely of scientific interest and it cannot possibly cause any prejudice to the defence of India public safety or maintenance of public order
In September 1964 the detenu applied to the Government of Maharashtra seeking permission to send the manuscript out of the jail for publication but the Government by its letter dated March 27 1965 rejected the request
He again applied to the Superintendent Arthur Road Prison for permission to send the manuscript out and that too was rejected
Thereafter he filed a petition under article 226 of the Constitution in the High Court of Maharashtra at Bombay 704 for directing the State of Maharashtra to permit him to send out the manuscript of the book written by him for its eventual publication
The Government of Maharashtra in the counter affidavit did not allege that the publication of the said book would be prejudicial to the objects of the Defence of India Act but averred that the Government was not required by law to permit the detenu to publish books while in detention
The High Court of Bombay held that the civil rights and liberties of a citizen were in no way curbed by the order of detention and that it was always open to the detenu to carry on his activities within the conditions governing his detention
It further held that there were no rules prohibiting a detenu from sending a book outside the jail with a view to get it published
In that view the High Court directed the Government to allow the manuscript book to be sent by the detenu to his wife for its eventual publication
The State of Maharashtra has preferred the present appeal against the said order of the High Court
The contentions of the learned Additional Solicitor General may be briefly stated thus  When a person is detained he loses his freedom he is no longer a free man and therefore he can exercise only such privileges as are conferred on him by the order of detention
The Bombay Conditions of Detention Order 1951
which regulates the terms of the first respondent s detention does not confer on him any privilege or right to write a book and send it out of the prison for publication
In support of his contention he relies upon the observations of Das J as he then was in A K Gopalan vs State of Madras1 wherein the learned Judge has expressed the view in the context of fundamental rights that if a citizen loses the freedom of his person by reason of a lawful detention he cannot claim the rights under article 19 of the Constitution as the rights enshrined in the said article are only the attributes of a free man
Mr Garg learned counsel for the detenu raised before us the following two points  1 a restriction of the nature imposed by the Government on the detenu can only be made by an order issued by the appropriate Government under cls
f and h of sub r
1 of r 30 of the Defence of India Rules 1962 hereinafter called the Rules and that too in strict compliance with section 44 of the Defence of India Act 1962 hereinafter called the Act and that as the impugned restriction was neither made by such an order nor did it comply with section 44 of the Act it was an illegal restriction on his personal liberty and 2 neither the detention order nor the 1   291
705 conditions of detention which governed the first respondent s detention enabled the Government to prevent the said respondent from sending his manuscript book out of the prison for publication and therefore the order of the Government rejecting the said respondent s request in that regard was illegal
Article 358 of the Constitution suspends the provisions of article 19 of Part III of the Constitution during the period the proclamation of emergency is in operation and the order passed by the President under article 3 5 9 suspended the enforcement inter alia of article 21 during the period of the said emergency
But the President s order was a conditional one
In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act 1962 or any rule or order made thereunder
If a person was de lived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof his right to move the said Courts in that regard would not be suspended
The question therefore
in this case is whether the first respondent s liberty has been restricted in terms of the Defence of India Rules whereunder he was detained
If it was in contravention of the said Rules he would have the right to approach the High Court under article 226 of the Constitution
In exercise of the Dower conferred on the Central Government by section 3 of the Act the Central Government made the Defence of India Rules
Under section 30 of the Rules the Central Government or the State Government if it is satisfied with respect to any person that in order to prevent him from acting in any manner prejudicial to the matters mentioned therein it is necessary so to do may make an order directing that he be detained
Under subr
4 thereof he shall be liable to be detained in such place and under such conditions as to maintenance discipline and the punishment of the offence and the breaches of discipline as the Central Government or the State Government as the case may be may from time to time determine
In exercise of the power con ferred under sub r
4 of r 30 of the Rules the Government of
Maharashtra determined that the conditions as to maintenance discipline and the punishment of offenses and breaches of discipline governing persons ordered to be detained in any place in the State of Maharashtra shall be the same as those contained in the Bombay Conditions of Detention Order 1951
The Bombay Conditions of Detention Order 1951 does not contain any condition as regards the writing of books by a detenu or sending them out of jail for publication
Briefly stated the scheme of the said p C and I65 2 706 provisions is that a person can be detained if the appropriate Government is satisfied that in order to prevent him from doing the prejudicial acts mentioned in r 30 of the Rules it is necessary to detain him in prison subject to the conditions imposed in the manner prescribed in sub r
4 of r 30 of the Rules
To put it in a negative form no restrictions other than those prescribed under sub r
4 of r 30 can be imposed on a detenu
If the appropriate authority seeks to impose on a detenu a restriction not so prescribed the said authority will be interfering with the personal liberty of the detenu in derogation of the law whereunder he is detained
If that happens the High Court in terms of Art 226 of the Constitution can issue an appropriate writ or direction to the authority concerned to act in accordance with law
We have gone through the provisions of the Bombay Conditions of Detention Order 195 1
There is no provision in that Order dealing with the writing or publication of books by a detenu
There is therefore no restriction on the detenu in respect of that activity
Sub rule iii of r 17 of the said Order reads All letters to and from security prisoners shall be censored by the Commissioner or the Superintendent a the case may be
If in the opinion of the Commissioner or the Superintendent the dispatch or delivery of any letter is likely to be detrimental to the public interest or safety or the discipline of the place of detention he shall either withhold such letter or despatch or deliver it after deleting any objectionable portion therefrom
In respect of the censoring of letters of security prisoners the Commissioner or the Superintendent shall comply with any general or special instructions issued by Government
 The Maharashtra Government has not relied upon this rule
In deed in the counter affidavit its case was not that it prohibited the sending of the book for publication under the said sub rule but that it was not required by law to permit the detenu to publish books while in detention nor was it its case before the High Court that the publication of this book was detrimental to public interest or safety or the discipline of the place of detention
Prima facie the said sub rule applies only to letters to and from security priso ners and does not regulate the sending out of prison books for publication
Indeed the learned Additional Solicitor General does not rely upon this provision
707 Let us now consider the validity of the argument of the learned Additional Solicitor General
He relies upon the following observations of Das J as he then was in A K Gopalan s case1 at p 29 1
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 per son and are consequently attached to the person  Relying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations as the detenu ceased  to be free in view of his detention he cannot exercise his freedom to publish his book
In other words as he is no longer a free man his right to publish his book which is only an attribute of personal liberty is lost
The principle accepted by Das J as he then was does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with his conclusion
Different reasons are given by the learned Judges fro arriving at the same conclusion
As has been pointed out by this Court in the second Kochunni s case2 the views of the learned Judges may be broadly summarized under the following heads  1 to invoke article 191 of the Constitution a law shall be made directly infringing that right 2 articles 21 and 22 constitute a self contained code and 3 the freedoms in article 19 postulate a free man
Therefore it cannot be said that the said principle was accepted by all the learned Judges who took part in A K Gopalan s case
The apart there are five distinct lines of thought in the matter of reconciling article 21 with article 19 namely 1 if one loses his freedom by detention he loses all the other attributes of freedom enshrined in article 19 2 personal liberty in article 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in article 19 3 the personal liberty included in article 21 is wide enough to include some or all of the freedoms mentioned in article 19 but they are two distinct fundamental rights a law to be valid shall not infringe both the rights 4 the expression law in article 21 means a valid law and therefore even if a person s liberty is deprived by law of detention the said law 1  2 708 shall not infringe article 19 and 5 article 21 applies to procedural law whereas article 19 to substantive law relating to personal liberty
We do not propose to pursue the matter further or to express our opinion one way or other
We have only mentioned the said views to show that the view expressed by Das J as he then was in A K Gopalan s case1 is not the last word on the subject
In this case as we have said earlier we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules
Here the first respondent s liberty is restricted under the Defence of India Rule s subject to conditions determined in the manner prescribed in Sub r
4 of r 30 thereof
We find it difficult to accept the argument that the Bombay Conditions of Detention Order 1951 which lays down the conditions regulating the restrictions on the liberty of a detenu conferred only certain privileges on the detenu
If this argument were to be accepted it would mean that the detenu could be starved to death if there was no condition providing for giving food to the detenu
In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations unless for compelling reasons
We therefore hold that the said conditions regulating the restrictions on the personal liberty of a detenu arc not privileges conferred on him but are the conditions subject to which his liberty can be restricted
As there is no condition in the Bombay Conditions of Detention Order 1951 prohibiting a detenu from writing a book or sending it for publication the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained
The appellant therefore acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publication
In the view we have taken another argument advanced by Mr Garg namely that the restriction can only be imposed by an order made under section 30 f or h of the Rules and that too in strict compliance with section 44 of the Act need not be considered
That question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication
We do not express our view on this question one way or other
In the result the order passed by the High Court is correct
The appeal fails and is dismissed
Appeal dismissed


Summary:
The first respondent was detained by the Government of Maharashtra under r 301 b of the Defence of India Rules 1962
The conditions of detention under sub rule 4 of r 30 of the said rules were prescribed to be the same as those under the Bombay Conditions of Detention Order 1951
While so detained the first respondent wrote a book of scientific interest and sought permission from The State Government to send it out of jail for publication
The request having been rejected he filed a writ petition under article 226 of the Constitution praying for a direction to the State Government to permit him to send out the manuscript for Publication
The High Court held that The book was in no way prejudicial to the defence of India etc and allowed the petition
The State Government by special leave appealed to this Court
It was contended on behalf of the appellant that the first respondent not being a free person could exercise only such privileges a  were conferred on him by the order of detention and the Bombay Conditions of Detention Order 1951 which regulated the terms of the respondent s detention did not confer on him any privilege or right to write a book and send it out of the prison for publication
HELD  i It cannot be said that the Bombay Conditions of Detention Order 1951 which lays down the conditions regulating the restrictions on the liberty of a detenu conferred only certain privileges on the detenu
If this argument were to be accepted it would mean that the detenu could be starved to death if there was no condition providing for giving food to the detenu
In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations unless for compelling reasons
7O8 C D ii The said conditions regulating the restriction on the personal liberty of a detenu are not privileges conferred on him but are the conditions subject to which his liberty can be restricted
As there is no condition in the Bombay Conditions of Detention Order 1951 prohibiting a detenu from writing a book or sending it for publication the State of Maharashtra in refusing to allow the same infringed the personal liberty of the first Respondent in derogation of the law whereunder he was detained
708 E iii The effect of the President s order under article 359 of the Constitution was that the right to move the High Court or the Supreme Court remained suspended during the period of emergency if a person was deprived of his personal liberty under the Defence of India Act 1962 or any rule or order made thereunder
If a person was deprived of his personal liberty not under the Act or rule or order made thereunder but in contravention thereof his right to move the said courts in that regard would not be suspended
705 C D 703 Since the State Government s refusal to allow publication of the first respondent s book was in contravention and derogation of the law under which he was detained he had the right to move the High Court under article 226 and the said High Court was empowered to issue an appropriate writ or direction to the said Government to act in accordance with law