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

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

Explanation:
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,