Case: Lawrence Joachim Joseph D Vs. The State Of Bombay

which would enable him to make the representation."The fact that he had made no such application for particulars is, therefore a, circumstance which may well be taken into consideration, in deciding whether the grounds can be considered to be vague. In the circumstances and having regard to the fact that what is alleged is espionage activity at a time when relations between the two Governments on the affairs of Goa were somewhat delicate, we are inclined to think with the High Court, that the grounds cannot be considered to be vague.5. Assuming however that the grounds furnished in this case are open to the challenge of vagueness, the further question which arises is whether the validity of the order of detention can be sustained by reason of the claim, in public interest, of non-disclosure of facts made by the Under-Secretary to the Government of Bombay by means of his affidavit filed in the High Court. Now it has been held in [1951] SC 157 (164) (AIR V 38) (A), by the majority of the Court, that the constitution right of a detenu under Art. 22 (5) comprises two distinct components.1. The right to be furnished grounds of detention as soon as may be; and2. The right to be afforded the earliest opportunity of making a representation against his detention which implies, the right to be furnished adequate particulars of the grounds of detention, to enable a proper representation being made. These rights involve corresponding obligations on the part of the detaining authority. It follows that the authority is under a constitutional obligation to furnish reasonable definite grounds, as well as adequate particulars then and there, or shortly thereafter,but the right of the detenu to be furnished particulars, is subject to the limitation under Art. 22(6) whereby disclosure of facts considered to be against public interest cannot be required. It is however to be observed that under Art. 22 (6) the facts which cannot be required to be disclosed are those "which such authority considers to be against public interest to disclose."Hence it follows that both the obligation to furnished particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority not in any other. It was accordingly attempted to be argued in the High Court that the claim of non-disclosure made in the affidavit of the Under Secretary indicated a decision for non-disclosure, by the Under-Secretary himself and that too at the time of filing the affidavit. On this assumption it was contended that the claim for non-disclosure was invalid. The High Court, however, on a consideration of the materials, felt satisfied that what was stated in the affidavit related to the decision of the detaining authority itself, taken at the time. The learned Judges expressed their conclusion as follows :"There is nothing in the affidavit of Mr. Bambawala to suggest that it is now that the detaining authority is claiming privilege or applying its mind to the question of privilege .......... The meaning is clear that at no time it was in public interest to disclose the details referred to in the particular paragraph of the affidavit and there is nothing to suggest that his question was not considered by the detaining authority at the time when the grounds were furnished."No argument has been addressed to us how this conclusion is incorrect. But what has been urged before is that the decision not to disclose the facts as well as the ambit of the non-disclosure must be clearly communicated to the detenu at the time when the grounds are furnished. It is urged that if the detenu is furnished information at least to that extent, it will enable him to present to the Advisory Board his difficulties in making a proper representation and to convey to it a request for obtaining the requisite particulars from the State under S. 10 of the Act for their own information and consideration. We are unable to imply any such obligation under Article 22(5) and (6). The necessity for such a communication would arise only if the detenu, feeling the grounds to be vague, asks for particulars. An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation. But in the absence of any such request by the detenu, the non-communication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in these circumstances. In the present case there is no merit in this contention. If the appellant had exercised his right to ask for particulars, at the time, from the detaining authority, there can be no doubt that he would have been furnished then the very information which has been supplied in paragraph 12 of the Under - Secretary affidavit in answer to para 15 (g) of the appellants petition both of which have been already set out above.6. A faint suggestion has been made in the course of the arguments before us that the decision not to disclose particulars is mala fide and that such mala fides has to be imputed in a case where no particulars are at all furnished. It is suggested that the power not to disclose facts considered against public interest cannot be so exercised as to nullify the constitutional right of the detenu for being afforded a proper opportunity of representation. Such a contention as to the mala fide exercise of the powers untenable in the present case having regard to the nature of the grounds on which the detention is based and the nature of activities imputed therein to the appellant. It is unnecessary, therefore, to deal in this case with a theoretical contention as to whether or not Art. 22(6) of the Constitution overrides the constitutional right to be furnished particulars under Art. 22(5) to the extent of denying all particulars and leaving the grounds absolutely vague.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have been taken through all the material relating to the above allegation and have given our consideration to the same. It is enough to say that we are unable to see any reason for disagreeing with the conclusion of the High Court to the effect that the material is not enough to make out that the detaining authority was acting otherwise than bona fide. We also agree with the view of the High Court that, what has got to be made out is not the want of bona fides on the part of the police, but want of bona fides as well as the non-application of mind, on the part of the detaining authority, viz the Government, which for this purpose must be taken to be different from the police. It is also clear that the allegation of non-application of mind of the detaining authority is without any basis, in view of the affidavit of the Chief Secretary.is true that these allegations are not as precise and specific as might have been desired.But having regard to the nature of the alleged activities of the appellant, it is not unlikely that no more could be gathered or furnished. In this context it is relevant to notice that the appellant himself does not appear to have felt that the grounds furnished were so vague as to hamper him in his right to make a representation under Article 22(5) and section 7 of the Act.It does not appear that he applied to the Government to be supplied with particulars, of the grounds furnished tofact that he had made no such application for particulars is, therefore a, circumstance which may well be taken into consideration, in deciding whether the grounds can be considered to be vague. In the circumstances and having regard to the fact that what is alleged is espionage activity at a time when relations between the two Governments on the affairs of Goa were somewhat delicate, we are inclined to think with the High Court, that the grounds cannot be considered to beit follows that both the obligation to furnished particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority not in any other. It was accordingly attempted to be argued in the High Court that the claim of non-disclosure made in the affidavit of the Under Secretary indicated a decision for non-disclosure, by the Under-Secretary himself and that too at the time of filing theare unable to imply any such obligation under Article 22(5) and (6). The necessity for such a communication would arise only if the detenu, feeling the grounds to be vague, asks for particulars. An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation. But in the absence of any such request by the detenu, the non-communication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in thesethe appellant had exercised his right to ask for particulars, at the time, from the detaining authority, there can be no doubt that he would have been furnished then the very information which has been supplied in paragraph 12 of the Under - Secretary affidavit in answer to para 15 (g) of the appellants petition both of which have been already set out above.