Case: S. Krishnan And Others Vs. The State Of Madras(And Other Petitions)Union Of India--In

Kania C. J.1. I agree with the judgment prepared by Sastri J. and have nothing more to add. Patanjali Sastri J.2. The common question which arises for consideration in these petitions is whether certain provisions of the Preventive Detention (Amendment) Act, 1951, purporting to amend the Preventive Detention Act, 1950, so as to authorise detention of the petitioners to be continued beyond the expiry of one year areultra viresand inoperative.3. The Amending Act (hereinafter referred to as the new Act) came into force on 22- 2-1951, and by Substituting the figures "1952" for "1951" in Sub-- S.(3) of S. 1, Preventive Detention Act, 1950, (hereinafter referred to as the old Act it continues the operation of the old Act till 31-3-1952.4. The petitioners in all these case were, at the commencement of the new Act, under detention in pursuance of orders made under S. 3 (1) (a) (ii) of the old Act and save in a few cases where the detention was also attacked on some special grounds which have no Sub-stance, the legality of that detention was not open to question. But such detention having commenced more than a year before the date of bearing of these petitions, the petitioners would have been entitled to be released had it not been for the provisions of the new Act which purport to authorise the continuance of their detention .5. Mr. Nambiyar, on behalf of the petitioners, urged that these provisions contravened Art. 22 (4)(a) of the Constitution and were, therefore, void under Art.13 (2). Art. 22 (4) (a) provides :No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless -(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:Provided that nothing in this Sub-Clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-Cl. (b) of Cl. (7)."6. It will be seen that two conditions have to be fulfilled in order that a person can be detained for a longer period than three months; (i) his case must be referred to an Advisory Board constituted in the manner specified and (ii) that Board must make a report before the expiration of three months that there is sufficient cause for such detention. S. 12 of the old Act having provided that there was to be no review by an Advisory Board in cases falling within s. 3 (1) (a) (ii), the petitioners detention in pursuance of orders made under the latter section fell under Art. 22 (4) (b), and there was no question, therefore, of such detention contravening Art. 22 (4) (a). The scheme of the new Act, however, was to extend the benefit of a review by an Advisory Board to all cases and to bind the detaining authorities to act conformably to the report of the Board. The method adopted to give effect to this scheme was to delete some of the provisions of the old Act and to Substitute in their place new provisions.7. The material provisions of the new Act are Ss. 9, 10, 11 and 12. S. 9 provides for a reference to an Advisory Board within six weeks from the date specified in Sub-s-(2) which says :"The date referred to in Sub-s-(1) shall be - (a) in every case where at the commencement of the Preventive Detention (Amendment) Act, 1951, the person is under detention in pursuance of a detention order made under Sub-.Cl. (i) or Sub- Cl. (ii) of Cl. (a) of Sub-s-(1) of S. 3, the date of commencement of the said Act; and(b) in every other case the date of detention under the order."By s. 10 the Advisory Board is required to Submit its report within ten weeks from the date specified in Sub-S. (2) of S.9. S. 11 (1) authorises the appropriate Govt. to continue the period of detention for such period as it thinks fit in case the Advisory Board reports that there are sufficient grounds for the detention, while Sub-s. (2) provides that the Govt. shall revoke the detention order and release the person concerned if the Advisory Board reports the other way. Sub--S. (1) of S. 12 declares for the "avoidance of doubt" that every detention order in force at the commencement of the new Act "shall continue in force and shall have effect as if it had been made under this Act as amended" by the new Act, Sub-S. (2) provides that nothing contained in Sub-S. (3) of S. 1 or in Sub- S. (1) of S.12 of the old Act shall affect the validity or duration of any such order.8. It will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above, S. 12 had the effect of enlarging the period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such cases shall have effect as if it had been made under the new Act. On that basis, the new Act seeks to bring detention orders in force at its commencement and more than three months old into conformity with Art, 22 (4) (a) by prescribing a period of six weeks in S 9 for referring such cases to the Advisory Board and ten weeks in S. 10 (1) for the Sub-mission by the Board of its report, the period in each being calculated from the commencement of the new Act. But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to Sub-mit its report before the expiration of that period, with the result that their detention contravened Art. 22 (4)(a). No doubt the detention up to the commencement of the new Act was lawful under S.12 of the old Act, as it was in accordance with Sub--Cl. (b) of Cl, (4) of Art. 22, but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old S. 12. It is a fallacy to treat what was a lawful detention under Sub--Cl. (b) as being no detention at all for purposes of Sub-- Cl. (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under “Art. 22 (4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions.9. It was said that if the petitioners had been released on 22-2-1951 and re-arrested and detained immediately thereafter under the new Act such detention would have been valid. But, for proceeding in that manner the enactment of Ss. 9 (2) (a) and 12 (1) would be unnecessary, Parliament has, however, adopted a different mode of proceeding by providing for the continuance of detention orders in force at the commencement of the new Act on the basis that they should have effect as if they had been made under the new Act. The resulting position must, therefore, be dealt with only on that basis and not on any other hypothetical footing.10. The Attorney-General, however, contended in the alternative that the constitutional validity of S. 9 (2) (a) and S. 12 (1) of the new Act could be sustained under Art. 22 (4) (b) which has been held by a majority of the Judges in A. K. Gopalan v. The State of Madras,1950 S. C. R. 88 to be a distinct and independent provision authorising preventive detention for a period longer than three months in accordance with a law made by Parliament under Sub-Cls. (a) and (b) of Cl. (7) of Art. 21. The Attorney-General Claimed that the aforesaid provisions were such a law, none the less because Parliament may have intended to make a law within Art. 22 (4) (a) by providing for and review by an Advisory Board in all cases of preventive detention. On a question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hallmark which stamps a preventive detention law as one necessarily falling within Sub-.Cl. (a) of Cl. (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that Sub--Clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-- Cl. (b) of Cl. (4). Mr. Nambiyar, however, Sub-mitted that the new Act did not fulfil those conditions, for, it is not a law made under Sub-Cls. (a) and (b) of Cl. (I). The word and" should be understood in its ordinary conjunctive sense and the new Act neither prescribes the circumstances and Classes referred to in Sub-Cl. (a) nor the maximum period of detention required to be prescribed under Sub-Cl. (b) of Cl. (7). The contention is devoid of Substance. The new Act can, in my opinion, be regarded as a law made Substantially in accordance with Sub-Cls. (a) and (b) of Cl. (7). According to the majority view in Gopalans case, Sub-. Cl. (a) of Cl. (7) being an enabling provision, the word and should be understood in a disjunctive sense. The combined effect of Ss. 9 (2) (a) and 12 (1) is to provide, in a certain Class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in Sub--Cl. (a) of Cl. (4). And, although the new Act does not in express terms prescribe in and separate provision any maximum period as such for which any person may in any Class or Classes of cases be detained, it fixes, by extending the duration of the old Act till 1-4-1952, an over- all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statue is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it willipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4, p. 347). Preventive detention which would but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in Sub-stance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that S. 9 (2)(a) and S. 12 (1) of the new Act Substantially satisfy the requirements of Sub--Cl. (b) of Cl. (4) of Art. 22, and cannot be declared unconstitutional and void.11. The objection to the validity of S. 11 (1) can be disposed of in a few words. The argument is that the discretionary power given to the appropriate Govt. under that Sub-section to continue the detention "for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of Art. 22 (4).But, if, as already observed the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only Subject to that over all limit. The objection, therefore, fails,12. In the result the petitions are dismissed.Mahajan J.-13. The question to be decided in these petitions is whether the Preventive Detention (Amendment) Act, 1951, or any part thereof is invalid and whether the petitioners who have been detained are entitled to a writ in the nature of habeas corpus on the ground that their detention is illegal.14. The Act was enacted by Parliament on 27-2-1951 and according to its express terms will cease to have effect on 1-4-1959, save as regards things done or omitted to be done before that date.15. The point that has been canvassed before us is that Ss. 9 (2) (a) and 12 of the Act are invalid as these infringe the fundamental rights conferred under Arts. 21 and 22 of Part III of the Constitution. S. 9 of the Act as amended reads as follows:"(1) In every case where and detention order has been made under this Act the appropriate Govt. shall within six weeks from the date specified in Sub--s. (2)place before an advisory board constituted by it under S .8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer also, the report made by such officer, under Sub--s- (3) of S. 3.2. The date referred to it in Sub--s. (1) shall be-(a) in every case where at the commencement of the Preventive Detention (Amendment Act. 1951, a person is under detention in pursuance of and detention order made under Sub--Cl. (i) or (ii ) of Cl. (a) of Sub--s (1) of S. 3, the date of commencement of the said Act ; and(b) in every other case the date of the detention order."16. S. 12 is in these terms:"For the avoidance of doubt it is hereby declared -(a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act, l951 shall continue in force and shall have effect if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951; and(b) nothing contained in Sub-s- (3) of S.1, or Su--s. (1) of S. 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order."17. Mr. Nambiar for the detenus challenged the vires of these sections on the following grounds: (1) That Art. 22 (4) of the Constitution limits the legislative power of Parliament and State legislatures in respect of preventive detention laws in the matter of duration of the period of detention and provides that no law of preventive detention can authorise the detention of a person for a longer period than three months without the intervention of an advisory board and without obtaining its opinion within three months. The Amending Act, 1951 by S. 9 anthorizes detention for a period longer than three months without the opinion of the advisory board having been obtained within the said period of three months from the date of the actual detention in respect of persons detained under Act IV [4] of 1950 as it originally stood and it thus infringes the fundamental right conferred by Art. 22 (4), (2) That Parliament in exercise of powers conferred on it under Art. 22 (7) having prescribed in S. 12 of Act IV [4] of 1950 and maximum period of one year for detention in certain Classes of cases without obtaining the opinion of the advisory board that period of one year became a part of the content of the fundamental right conferred under Art. 22 (4) of the Constitution. Ss. 9 and 12 of the amended Act contravene this fundamental right inasmuch as they authorize detention of persons who were detained under orders passed under S. 3 (1) (i) and (ii) of Act IV [4] of 1950 beyond the period of one year prescribed there in, and are therefore void. (3) That Parliament has no authority to alter the period of one year prescribed by it by virtue of authority given to it under Art. 22 (7) (b) of the Constitution so as to affect the cases of persons detained under Act IV [4] of 1950. (4) That the Constitution does not envisage detention for an indefinite period and that inasmuch as the amended Act has failed to provide a maximum period for the detention of and person, it is repugnant to the Constitution and is void; that it was obligatory on Parliament while making the law providing for preventive detention to fix the maximum period for such detention. (5) That the provisions of these sections infringe Art. 21 of the Constitution inasmuch as they authorize detention contrary to procedure established by law (Act IV [4] of 1950) in respect of detentions under that Act, because under established procedure detention beyond a period of one year was void. For the reasons given above, it was contended trial as in the case of the petitioners the maximum period of one year under S. 12 of Act IV [4] of 1950 had expired on 27-2-1951, they were entitled to their release.18. For a proper appreciation of the points urged by the learned counsel and the manner in which they were combated by the learned Attorney General, it is necessary to shortly state the nature of the relevant amendments introduced by the amending Act in the Preventive Detention Act IV [4] of 1950. In S. 8 of Act IV [4] of 1950, which concerns the Constitution of advisory boards, the new Act has provided that the board shall consist of three persons instead of two except in cases where before the commencement of the amended Act reference had already been made to an advisory board. S. 9 of Act IV [4] of 1950 has been substituted by S. 9 of the amending Act and it gives the benefit of the advisory board to all Classes and cases of persons, who, under Act IV [4] of 1950, were not entitled to that benefit. It makes it obligatory on Govt. to place all these cases, like all other cases, within six weeks from a prescribed date before an advisory board. In section to the amended Act makes it obligatory on the advisory board to Submit its report to the Govt. within ten weeks of the date specified under S. 9 and it also authorizes the advisory board to call for such information as it deems necessary from Govt. and from the person concerned and it empowers it to give a hearing to the detenu if in any particular case it considers it essential. S. 11 makes the opinion of the advisory board binding on Govt. It also authorizes Govt. to continue the detention of persons for such period as it thinks fit in cases where the opinion of the board is in favour of the continuance of detention. S. 19 provides that orders of detention in force at the commencement of the amended Act will be deemed to have been made under this Act. A new s. 14 has been introduced in Act IV [4] of 1950 and it authorizes temporary release of persons detained.19. The provisions of the amended Act are thus a great improvement on the original Act inasmuch as they provide a greater opportunity to the detenus of proving their innocence than they had under the original Act. The detention of a person without the case being referred to the opinion of an advisory board constituted of independent persons has been completely done away with except for a period of three months provided for in Art. 22 (4) of the Constitution. What the amended Act has in Sub-stance done is that instead of the cases of persons preventively detained being considered by ordinary Courts of law, a special tribunal designated as an advisory board and consisting of men of high judicial experience has been given authority to examine their cases within a prescribed period and the decision of that authority has been made binding on Govt. This tribunal is obviously no Substitute for a Court of law but a provision like this is in the nature of a Substantial solatium in cases of preventive detention wherein ordinarily the detaining authority is the judging authority as well.20. Shortly stated, Mr. Nambiars attack on these beneficial provisions and concerning their vires is based principally on the method adopted by the draftsmen of the Act for switching over the detentions which were being continued under S. 12 of Act IV [4] of 1950 and which were valid by virtue of the constitutional provisions contained in Art. 22 (4) (b) of the Constitution to the constitutional provisions contained in Art. 22 (4) (a) so that they may be given the benefit of an advisory boards opinion. His grievance is that in doing so the amended statute has enlarged the period of three months provided under Art. 22 (4) for a report of the advisory board and has extended the period of one year mentioned in S. 12 of Act IV [4] of 1950. This argument is based on the assumption that the period of one year mentioned in S. 12 of Act IV [4] of 1950 was an immutable and unalterable one and that Parliament could not amend S. 12 of the Act in any manner whatsoever once having enacted it. I am unable to accept ibis contention. It seems to me, that it was open to parliament to amend S. 12 and substitute another maximum for the period of one year mentioned therein. If Parliament had recourse to that alternative, then in my opinion, the petitioners could have no possible grievance as regards the vires of the new legislation. As regards the period of three months, it was essential to fix some date from which that period had to be calculated in respect of cases which were previously governed by S. 12 of Act IV [4] of 1950. Under that section they did not have the benefit of the advisory board and when the new law gave them that benefit, aterminus quohad to be fixed for the period of three months during which the advisory board had to Submit its report. The amended Act achieved this by prescribing in these specified Classes of cases the date of the commencement of the amended Act as the date from which this period was to begin and by S. 12 it provided that all detentions continuing at the date of the commencement of the amended Act shall be deemed to be detentions under the amended Act.21. After a careful consideration of the argument of Mr. Nambiar, I have reached the conclusion that there is considerable farce in the reply made to it by the learned Attorney-General. He contended that Art. 22 (4) provides that no law providing for preventive detention shall authorize detention of a person for a longer period than three months and that the amended Act has not in any manner infringed this provision; on the other hand, it provides that the advisory board must make its report to the Govt. within ten weeks. It was argued that in order to Judge the vires of the amended Act it was not relevant to take into consideration detention of persons validly detained under a different statute and that its vires must be adjudged on its own provisions and not with reference to what has actually happened under another law. It was frankly conceded that if Parliament or a State legislature passed legislation in a manner which amounted to a fraud on the Constitution inasmuch as those enactments were passed with the purpose of defeating the constitutional provisions, then three laws could be attacked on that ground but not on the grounds of their vires that in the present case no such argument had been taken or could be taken and that being so, the contention of Mr. Nambiar was not justified.22. In my opinion, the statute as framed does not in any way contravene or abridge either the provisions of Art. 21 or of Art. 22. It was open to Parliament, as already observed, to alter the maximum period of detention mentioned in S. 12 of Act IV [4] of 1950 and to enhance it. It was also open to Govt. to release these detenus after the expiry of one year and to serve fresh orders of detention on them after their release under the amended Act. If that had been done, no question could possibly be raised that the period of three months provided for in Art. 22 (4) of the Constitution had in any way been affected. Instead of going through that form of ceremony, Parliament by S. 12 of the amended Act provided that all detention orders in force under Act IV [4] of 1950 be treated as detention orders under the amended Act. By the effect of this section the detention of all such persons becomes a fresh detention under the new law, with the result that nothing it the amended statute can be said to abridge the fundamental, right conferred by Art. 22 (4) of the Constitution. It was argued that the amended statute is not a new and an independent statute and that in spite of the amendments it remains the same statute as was passed in 1950, and that the detention of the petitioners is under the same law of preventive detention and it therefore offends against Art. 22 (4) of the Constitution and that it virtually amounts to tacking of the period of detention under one Act to the period of detention under another Act and as such amounts indirectly and substantially to an infringement of the fundamental right. In my opinion, this contention, though attractive, is without force. Technically speaking, an amended statute remains the same statute as originally enacted but from that proposition it does not follow that the law contained in the amended statute is the same law as was contained in the original one. S. 9 of the original Act has been substituted by S. 9 of the amended Act and declares a new law and it is not a re-enactment of the law as was contained in the earlier statute. S. 12 of the original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by S. 12 of the amended Act is in the nature of and substituted provision. It seems to me that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent statute. The petitioners are being detained today by force of the provisions contained in Ss. 9 and 12 of the amended Act and not under the law that was passed in 1950, as by repeal of S.12 of that Act their detention under it technically terminated. The new law admittedly standing by itself does not authorize detention of any person beyond a period of three months except in the manner provided by Art. 22 (4) of the Constitution. No question whatever arises of tacking of the period of detention under one law to the period of detention under another law, inasmuch as the detention under the earlier law automatically terminates with the repeal of S. 12 of Act IV [4] of 1950. For the reasons given above, the first contention of Mr. Nambiar fails.23. In view of the above decision, it is unnecessary to consider the alternative argument of the learned Attorney-General to the effect that in case it is held that S. 9 contravenes Art. 22 (4) (a) of the Constitution, it is and valid law under Art. 22 (4) (b) of the Constitution and hence the order of detention is legal. Mr. Namiber Contention to the effect that in case the petitioners detention is regarded as and fresh detention under the amended Act, then it is necessary to serve them with fresh grounds of detention does not appear to me to be well founded. The point was not raised in the petitions and no argument was addressed to us that any right under Art. 22 (5) had been infringed. Moreover, as at present advised, I think the contention has not got much force because of the Clear provisions of S. 12 of the amended Act which treats every detention order having force at the commencement of the amended Act as being deemed to continue under it. When detention is not on any fresh grounds but on grounds already served, any default in observing the formality of again serving those very grounds on the detenue cannot be said to be an infringement of the fundamental right under Art. 22 (5) of the Constitution.24. The next contention of Mr. Nambiar that Parliament having fixed the maximum period of detention in S. 12 of Act IV [4] of 1950 under its powers contained in Art. 22 (7) of the Constitution, that maximum became a part of the content of fundamental rights and Ss. 9 and 12 of the amended Act contravene this fundamental right inasmuch as these authorize detention of the petitioners for a period beyond one year again, in my opinion, is not sound. In other words, the argument of the learned counsel amounts to this, that as soon as Parliament by law under Art. 22 (7) prescribed a maximum period for which any person may be detained under any law providing for preventive detention, then that period becomes a part of the fundamental right conferred on a person under Part III of the Constitution. The only method of adding to or subtracting from those rights is by an amendment of the Constitution in the manner provided therein. By Cl. (7) of Art. 22, Parliament has not been auhorized to add to the fundamental rights. The contention of the learned counsel is based on an erroneous assumption that Art. 22 in Cl. (7) confers a fundamental right on a person; in its true concept it restricts to a certain degree the measure of the fundamental right contained in Cl. (4) (a) of the Article.25. The argument that Parliament has no authority to alter the period of one year prescribed by it under Art. 22 (7) (b) of the Constitution is again founded on an erroneous assumption that the Clause confers legislative power on Parliament. The ambit of the legislative powers of Parliament is continued in Art. 245 of the Constitution read with the entries in Sch. 7. Art. 22 of the Constitution restricts those powers to a certain extent. It does not enlarge them. Cl. (7), however, cuts down these restrictions to a Certain extent. Parliament having power to make the law has also the power to alter or amend it, if it so chooses. It is difficult to assent to the proposition of the learned counsel that if a person is detained according to a law that existed at the time of his detention, then in regard to him it is that and that law alone which matters and any change in the law, even if it has retrospective effect cannot effect him any manner whatever.26. The next point canvassed before us was that the Constitution does not envisage detention for an indefinite period that it is obligatory on Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to Art. 22 (4) (a) which enacts that nothing in the Sub-Clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub--Cl. (b) of Cl. (7), and it was urged that the word may in Art. 22 (7) must be read in the sense of must and as having a compulsory force inasmuch as the enactment authorizes Parliament to prescribe by law a maximum period for detention, for the advancement of justice and for public good, or for the benefit of persons subjected to preventive detention. Reference was made to Maxwell on Interpretation of Statutes (9th Edn., page 246) and to the well-known case of Julius v. Bishop of Oxford,(1880) 5 A. C. 214. Lord Cairns in that case observed as follows:"Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised."In my opinion, Cl. (7) of Art. 22 as already pointed out, in its true concept to a certain degree restricts the measure of the fundamental right contained in Cl. (4) (a) and in this context the rule referred to by Maxwell has no application whatever. Moreover, the provision in the Constitution is merely an enabling one and it is well settled that in an enabling Act words of a permissive nature cannot be given a compulsory meaning (Vide Craies on Statute Law, p. 254). Be that as it may, the point is no longer open as it has been concluded by the majority decision in Gopalans case,1950 S. C. R. 88. The learned Chief Justice at p. 119 of the report observed as follows:"Sub--Cl.(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--Cl. (7) itself and the Court cannot help in the matter.Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalans case,1950 S. C. R. 88. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners, therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law.27. The last point argued by Mr. Nambiar that the provisions of the amended Act contravene the provisions of Art. 21 of the Constitution does not impress me. The expression "procedure established by law" was considered by the majority in Gopalans case,1950 S. C. R. 88 as meaning procedure prescribed by law. The petitioners have been detained in accordance with the procedure prescribed by the amended statute and their detention, therefore, is in accordance with procedure prescribed by law. The contention of Mr. Nambiar that they are governed by the procedure contained in S. 12 of Act Iv [4) of 1950 as that was the procedure at the time when initially they were detained is, in my opinion, unsound. It is open to Parliament to change the procedure by enacting and law and that procedure becomes the procedure established by law within the meaning of that expression in Art. 21 of the Constitution. Further, the present detention of the petitioners / being by virtue of s. 12 of the amended Act a new detention under the amended Act, the procedure prescribed by the amended Act is the procedure established by law within the meaning of Art. 21.28. For the reasons given above, in my opinion, the Preventive Detention Amendment Act, 1951 is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution and the petitioners are not entitled to their release merely on the ground that the period of one year mentioned in S. 12 of Act Iv [4] of 1950 has expired.29. On the merits of the petitions, it was urged (1) that the grounds supplied to then were vague and insufficient to enable them to make a proper representation a (2) that their detention was mala fide and on political and party considerations. There is no force whatever in these contentions.

Decision:
0[ds]But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to Sub-mit its report before the expiration of that period, with the result that their detention contravened Art. 22 (4)(a). No doubt the detention up to the commencement of the new Act was lawful under S.12 of the old Act, as it was in accordance with Sub--Cl. (b) of Cl, (4) of Art. 22, but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old S. 12. It is a fallacy to treat what was a lawful detention under Sub--Cl. (b) as being no detention at all for purposes of Sub-- Cl. (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under22 (4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legala question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hallmark which stamps a preventive detention law as one necessarily falling within Sub-.Cl. (a) of Cl. (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that Sub--Clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-- Cl. (b) of Cl.contention is devoid of Substance. The new Act can, in my opinion, be regarded as a law made Substantially in accordance with Sub-Cls. (a) and (b) of Cl. (7). According to the majority view in Gopalans case, Sub-. Cl. (a) of Cl. (7) being an enabling provision, the word and should be understood in a disjunctive sense. The combined effect of Ss. 9 (2) (a) and 12 (1) is to provide, in a certain Class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in Sub--Cl. (a) of Cl. (4). And, although the new Act does not in express terms prescribe in and separate provision any maximum period as such for which any person may in any Class or Classes of cases be detained, it fixes, by extending the duration of the old Act till 1-4-1952, an over- all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statue is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it willipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4, p. 347). Preventive detention which would but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in Sub-stance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that S. 9 (2)(a) and S. 12 (1) of the new Act Substantially satisfy the requirements of Sub--Cl. (b) of Cl. (4) of Art. 22, and cannot be declared unconstitutional andargument is that the discretionary power given to the appropriate Govt. under that Sub-section to continue the detention "for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of Art. 22 (4).But, if, as already observed the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only Subject to that over all limit. The objection, therefore, fails,