Case: State of Maharashtra Vs. Prabhakar Pandurang Sanzgiri &amp; Another

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 prisoners and does not regulate the sending out of prison books for publication. Indeed, the learned Additional Solicitor-General does not rely upon this provision. 7. 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. Gopalans case. 1950 SCR 88 at p. 291: (AIR 1950 SC 27 at p. 108). If a mans 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 person 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 the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 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. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rights - a law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 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. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject. 8. 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 respondents liberty is restricted under the Defence of India Rules 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 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 infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained. 9. 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. 10. In the views we have taken, another argument advanced by Mr. Garg, namely, that the restriction can only be imposed by an order made under S. 30 (f) or (h) of the Rules and that too in strict compliance with S. 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.

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

Explanation:
1[ds]4. Article 358 of the Constitution suspends the provisions of Art. 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 Art. 359 suspended the enforcement, inter alia, of Art. 21 during the period of the said emergency. But the Presidents 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 deprived 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 respondents 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 Art. 226 of the Constitution5. In exercise of the power conferred on the Central Government by S. 3 of the Act, the Central Government made the Defence of India Rules. Under R. 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. (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 conferred under. (4) of R. 30 of the Rules, the Government of Maharashtra determined that the conditions as to maintenance, discipline and the punishment of offences 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 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. (4) of R. 30 of the Rules. To put it in a negative form no restrictions other than those prescribed under. (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 law6. We have gone through the provisions of the Bombay Conditions of Detention Order, 1951. 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.e (iii) of R. 17 of the said Order7. Let us now consider the validity of the argument of the learned Additional. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalans case. 1950 SCR 88   at p. 291: (AIR 1950 SC 27  at p. 108)If a mans 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 person and are consequently attached to the personRelying 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 the conclusion. Different reasons are given by the learned Judges for arriving at the same conclusion. As has been pointed out by this Court in the second Kochunnis case, (Kavalappara Kottarathil Kochuni v. State of Madras), (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), the views of the learned Judges may be broadly summarized under the following heads: (1) to invoke Art. 19 (1) of the Constitution, a law shall be made directly infringing the right; (2) Arts. 21 and 22 constitute ad code; and (3) the freedoms in Art. 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. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ). That apart, there are five distinct lines of thought in the matter of reconciling Art. 21 with Art. 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in Art. 19; (2) personal liberty in Art. 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in Art. 19; (3) the personal liberty included in Art. 21 is wide enough to include some or all of the freedom mentioned in Art. 19, but they are two distinct fundamental rightsa law to be valid shall not infringe both the rights; (4) the expression law in Art. 21 means a valid law and, therefore, even if a persons liberty is deprived by law of detention, the said law shall not infringe Art. 19; and (5) Art. 21 applies to procedural law, whereas Art. 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. Gopalans case, 1950 SCR 88 : (AIR 1950 SC 27 ), is not the last word on the subject8. 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 respondents liberty is restricted under the Defence of India Rules subject to conditions determined in the manner prescribed in. (4) of R. 30 thereofWe 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 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 infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained9. 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 publicationThat 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.