Case: P.L. Lakhanpal Vs. Union Of India &amp; Ors

On December 24, 1965 he filed a writ petition under Art. 32 of the Constitution in this Court for a writ of habeas corpus challenging his detention inter alia on the grounds that Rule 30) was ultra viresi) of the Defence of India Act,that Rule 23 of the Defence of India (DelhiRules, 1964 gave him a right to make a representation by providing a review of the said detention order and also by providing that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation and that his said right was violated by his being prevented from making such a representation, that the said order violated44 inasmuch as though he was an editor of a newspaper action against him was not taken as such editor as provided by thatand certain other provisions in the Act resulting in the invalidity of the said order and that the said order was mala fide as the Union Home Minister had failed to file an affidavit swearing as to his satisfaction although the petition contained specific allegations denying such satisfaction. That petition47 of) was heard and was dismissed on April 19, 1966 rejecting the aforesaid contentions. On June 11, 1966 the Central Government passed an order continuing the said detention order under. But whereas theof December 10,directed the petitioners detention with a view to preventing him from acting in any manner prejudicial to theDefence of Indial defence, public safety and the maintenance of public order the said order continuing his detention set out only the defence of India and civil defence. Likewise, though the original order described the petitioner as the son of the late Shri Diwan Chand Sharma, editor of the Evening View residing at etc., the order of June 11, 1966 simply described him as the son of the late Shri Diwan Chand Sharma. This difference probably was and had to be made as by reason of his detention he was no longer editing the said newspaper and was no longer residing at the address set out in the original order.

Reasoning: If the decision is to be founded on a mere subjective satisfaction or opinion it would be in the former category but if it is to be founded on a fact it has to fall in the latter category and in that event it would have to be regarded as one based on an objective test. It follows that where the exercise of power is not conditioned on a mere opinion or satisfaction but on the existence of a set of facts or circumstances that power can be exercised where they exist. The authority in such a case is required to exercise the power in the manner and within the limits authorised by the legislature. The existence of such facts which is the determinant for the exercise of the power is(b) the power to continue the detention after review is not dependent on the satisfaction of the Government. Rulepostulates that ordinarily detention should not be for more than six months unless found necessary. It is for that reason that under the Rules when the period of six months expires the Government is enjoined upon to decide whether it should be continued or cancelled. Though the legislature has made the Government the exclusive forum for such a decision, its decision has to be founded on facts and circumstances which makethe continuation necessary in order to prevent the detenu acting in a manner prejudicial to the matters set out therein. The substitution of decision instead of satisfaction is a clear indication that the criterion for continuing the detention is the existence of those facts and circumstances which necessitate it. It is not unreasonable to think that the legislature decided to confer power the exercise of which was made dependent upon the subjective satisfaction at the initial stage but where continuation of detention was concerned, it thought that there should be different considerations. At that stage there would be ample time and opportunity for the Government to scrutinise the case fully and ascertain whether facts and circumstances exist demanding continuation and therefore deliberately used the word "decide" instead of the words "is satisfied". Therefore where such circumstances do not exist there would be no necessity for continuation and yet if the Government decides to continue the detention, such a decision would be beyond the scope of Ruleand would not be a decision within the meaning of or under thatCases may arise where circumstances exist leading to the authoritys satisfaction that a particular person should be detained but those circumstances may not exist at the time when the review is made. In the latter case it is impossible to say that the Government can still decide to continue the detention nor is it possible to say that it is the Governments opinion or satisfaction that such facts and circumstances exist which is the criterion. The decision on a review has to be arrived at from the facts and circumstances which actually subsisted at the time when the original order was made in the light of subsequent developments and not merely those existing at the time when the order was made. In such a case the decision can be challenged as one not within the scope of or under theand therefore unauthorised or as one based on considerations irrelevant to the power.The question then is, is the decision to continue the order of detention one within the scope of? Relying on the omission in the order of June 11, 1966 of the words "public safety and the maintenance of public order" the petitioner contended that it must be held that those two grounds never existed and that since the exercise of power to detain depended on the satisfaction of the Government it cannot be predicated that the omitted grounds did not affect the Government during the process of its satisfaction. He relied on two decisions of this Court, (1)aj v. State of Delhi) and(2) Shibban Lal v. State of U.Both the cases were under the Preventive Detention Act, IV of 1950. In, thequestion was not of a ground not existing but of a ground being found to be vague and it was held that even though the rest of the grounds were notthe detention wasnot in accordance with the procedure established by law and was therefore illegal. Theed on the question whether under Art. 22(5) of the Constitution the detenu had an opportunity of effectively making a representation. In Shibbanlals, theCourt held that where the Government itself while confirming the detention in exercise of its power under11 admits that one of the two grounds mentioned in the original order was unsubstantial or non-existent, to say that the other ground which still remained was quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which was against the legislative policy underlying the statute. In suchon would be the same as if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. These decisions cannot help the petitioner. In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of that Act confers the power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting up of Advisory Boards. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu. Underhe Board has tomake a report to the Government and the report would be whether there is sufficient cause for detention or not. Undernt may confirm the detention order and continue the detention where the report is that there issufficient cause. But where the Board reports that there is no such sufficient causethe Government has torevoke the detention order. It is clear from9 and the sections following it thatthe Government has tomake the reference to the Board within 30 days from the order andBoard has tofind whether there is sufficient cause for detention or not. The review by the Board is thus almost contemporaneous.the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order. It is for that reason that thehave held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute theobjective test in place of the subjective satisfaction of the detaining authority. The scheme of0A is totally different from that of the Preventive Detention Act. Where an order is made under, its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original orderthe satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in). At the end of six months the reviewing authority on the materials before it may comedecision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two Actsns on the Preventive Detention Act cannotavailed of by the petitioner.the contentionas to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under30A was passed by the Minister of State of Home Affairs. The first part ofhas already been rejected by this Court in the petitioners earlier Writ Petitioncannot be reagitated. The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on record is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioners detention. The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then. Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non-application of mind. The affidavit by the Deputy Secretary discloses that the decision under30A was arrived at by the Minister after an examination of all the materials before him. The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence. So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion. Itnot possible to agree withthat this is a case of a mala fide exercise of power or a case of non-application of mind by the authority concerned.