dedol-hf/india-case-legal-rag huggingface dataset:
tution  provides that no amendment shall be  made  depriving
any State without its consent "of its equal suffrage in  the
Senate."  The  framers of the Indian  Constitution  had  the
American and the Japanese models before them, and they  must
be  taken to have prohibited even constitutional  amendments
in  derogation  of fundamental rights by  using  aptly  wide
language in article 13 (2). The argument is attractive,  but
there are other important considerations which point to  the
opposite conclusion.
14
106
    Although  "law" must ordinarily  include  constitutional
law,  there  is a clear demarcation  between  ordinary  law,
which is made in exercise of legislative power, and  consti-
tutional  law,  which  is made in  exercise  of  constituent
power.  Dicey defines constitutional law as  including  "all
rules  which directly or indirectly affect the  distribution
or the exercise of the sovereign power in the State."  It is
thus  mainly concerned with the creation of the three  great
organs of the State, the executive, the legislature and  the
judiciary, the distribution of governmental power among them
and  the definition of their mutual relation. No  doubt  our
constitution-makers,  following  the American  model,   have
incorporated certain fundamental rights in Part III and made
them immune from interference by laws made by the State.  We
find it, however,difficult, in the absence of a clear  indi-
cation  to the contrary, to suppose that they also  intended
to make those rights immune from  constitutional  amendment.
We  are  inclined to think that they must have had  in  mind
what  is of more frequent occurrence, that is,  invasion  of
the rights of the subjects by the legislative and the execu-
tive organs of the State by means of laws and rules made  in
exercise of their legislative power and not the  abridgement
or  nullification of such rights by alterations of the  Con-
stitution itself in exercise of sovereign constituent power.
That power, though it has been entrusted to Parliament,  has
been  so  hedged about with restrictions that  its  exercise
must be difficult and rare. On the other hand, the terms  of
article 36a are perfectly general and empower Parliament  to
amend the Constitution, without any exception whatever.  Had
it  been  intended to save the fundamental rights  from  the
operation  of that provision, it would have  been  perfectly
easy  to  make that intention clear by adding a  proviso  to
that  effect.  In short, we have here two articles  each  of
which is widely phrased, but conflicts in its operation with
the other. Harmonious construction requires that one  should
be  read  as controlled and qualified by the  other.  Having
regard  to the considerations adverted to above, we  are  of
opinion
107
that  in  the context of article 13 "law" must be  taken  to
mean  rules  or  regulations made in  exercise  of  ordinary
legislative  power  and not amendments to  the  Constitution
made in exercise of constituent power, with the result  that
article 1:3(2) does not affect amendments made under article
368.
    It only remains to deal with the objections particularly
directed  against the newly inserted articles 31A and  :3lB.
One of these objections is based on the absence of ratifica-
tion  under  article 368.  It was said  that,  before  these
articles were inserted by the Amending Act, the High  Courts
had the power under article 226 of the Constitution to issue
appropriate  writs  declaring the Zemindari  Abolition  Acts
unconstitutional  as  contravening fundamental  rights,  and
this  Court could entertain appeals from the orders  of  the
High  Courts under article 132 or article 136.  As a  matter
of  fact,  some High Courts had. exercised such  powers  and
this  Court  had  entertained appeals.   The  new  articles,
however,  deprive the High Courts as well as this  Court  of
the  power of declaring the said Acts unconstitutional,  and
thereby seek to make changes in Ch. 4 of Part V and Ch. 5 of
Part VI. It was therefore submitted that the newly  inserted
articles required ratification under the proviso to  article
368.  The argument proceeds on a misconception. These  arti-
cles so far as they are material here, run thus :--
31A.  Saving  of laws providing for acquisition  of  es-
tates,  etc.--(1) Notwithstanding anything in the  foregoing
provisions  of this part, no law providing for the  acquisi-
tion by the State of any estate or of any rights therein  or
for  the extinguishment or modification of any  such  rights
shall  be deemed to be void on the ground that it is  incon-
sistent  with, or takes away or abridges any of  the  rights
conferred by, any provisions of this Part :--
*         *                  *                 *
   31B.  Validation of certain Acts and  Regulations.Without
prejudice  to the generality of the provisions contained  in
article :31A, none of the Acts and Regulations specified  in
the Ninth Schedule nor any of the
108
provisions  thereof shall be deemed to be void, or  ever  to
have become void, on the ground that such Act, Regulation or
provision  is inconsistent with, or takes away  or  abridges
any of the rights conferred by, any provisions of this Part,
and  notwithstanding  any judgment, decree or order  of  any
court  or tribunal to  the contrary, each of the  said  Acts
and Regulations shall, subject to the power of any competent
Legislature to repeal or amend it, continue in force.
It  will be seen that these articles do not  either  in
terms or in effect seek to make any change in article 226 or
in  articles 132 and 136.  Article 31A aims at  saving  laws
providing  for the compulsory acquisition by the State of  a
certain  kind of property from the operation of  article  13
read with other relevant articles in Part III, while article
3lB purports to validate certain specified Acts  and-Regula-
tions already passed, which, but for such a provision, would
be  liable to be impugned under article 13.  It is not  cor-
rect to say that the powers of the High Court under  article
226 to issue writs "for the enforcement of any of the rights
conferred  by Part III" or of this Court under articles  132
and 136 to entertain appeals from orders issuing or refusing
such  writs are in any way affected.  They remain  just  the
same  as they were before: only a certain class of case  has
been  excluded  from the purview of Part II/and  the  courts
could  no  longer interfere, not because their  powers  were
curtailed in any manner or to any extent, but because  there
would  be  no occasion hereafter for the exercise  of  their
power in such cases.
     The  other  objection that it was beyond the  power  of
Parliament  to enact the new articles is equally  untenable.
It  was said that they related tO land which was covered  by
item  18  of List II of the Seventh Schedule  and  that  the
State  legislatures  alone had the power to  legislate  with
respect  to  that matter. The answer is that,  as  has  been
stated, articles a IA and 3lB really seek to save a  certain
class of laws and certain specified laws already passed from
the  combined operation of article 13 read with other  rele-
vant
109
articles of Part III. The new articles being thus essential-
ly amendments of the Constitution, Parliament alone had  the
power  of enacting them. That the laws thus saved relate  to
matters  covered by List II does not in any way  affect  the
position.  It was said that Parliament could not validate  a
law  which it had no power to enact. The  proposition  holds
good  where the validity of the impugned provision turns  on
whether  the  subject-matter  falls within  or  without  the
jurisdiction  of  the legislature which passed it.   But  to
make a law which contravenes the constitution  constitution-
ally  valid is a matter of constitutional amendment, and  as
such it falls within the exclusive power of Parliament.  The
question  whether  the  latter part of article  31B  is  too
widely expressed was not argued before us and we express  no
opinion upon it.
The petitions fail and are dismissed with costs.
                                    Petitions dismissed.
    Agent  for the Petitioners in Petitions Nos.  871,  372,
382, 383, 388 and 392: I. N. Shroff.
    Agent for the Petitioners in Petitions Nos. 287, 374  to
381 393, 394, 395: Rajinder Narain.
      Agent for the Petitioners in Petitions Nos. 387,
418,  481 to 485, 384, 385, 386 and 389: S.S.  Sukla.  Agent
for the  Petitioners in Petition No. 166:
M.S.K. Sastri.
    Agent for the Petitioners in Petition Nos. 817 and  319:
R.S. Narula.
Agent  for the Petitioner  in Petition No.  318:  Ganpat
Rai.
    Agent for the respondents: P. A. Mehta.
   15
110
PETITIONER:
BHIM SEN for R.S. MALIK MATHRA DAS
        Vs.
RESPONDENT:
THE STATE OF PUNJABUNION OF INDIA--Intervener.PREM NATH for
DATE OF JUDGMENT:
04/10/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  481            1952 SCR   19
 CITATOR INFO :
 RF         1968 SC1303  (7,8)
 R          1974 SC 183  (29)
ACT:
Preventive Detention Act (IV of 1950), s. 3  (1)--Preven-
tive  detention  for black-marketing--Order  based  on  past
activities--Validity --Power of Court to consider sufficien-
cy  of grounds--Effect of establishment of  Advisory  Boards
under Preventive Detention (Amending) Act, 1951.
HEADNOTE:
    An order of detention to prevent black-marketing  cannot
be held to be illegal merely because in the grounds for such
detention  the detaining authority has referred only to  the
past  activities  of the person detained,  inasmuch  as  in-
stances  of  past activities may give rise to  a  subjective
mental conviction that it is necessary to detain such person
to  prevent  him from indulging in  black-marketing  in  the
future.
    Under  the Preventive Detention. Act, 1950, the test  as
to  whether  an  order of detention should be  made  is  the
subjective  satisfaction  of the  detaining  authority;  the
Court has no power to consider whether the grounds  supplied
by the authority are sufficient to give rise to such  satis-
faction.   The  establishment of the Advisory Board  by  the
Amending  Act of 1951 has not made the matter a  justiciable
one, and even after the Amending Act the Court has no  power
to consider whether the grounds supplied' are sufficient for
making an order of detention.
JUDGMENT:
    CRIMINAL  APPELLATE  JURISDICTION: Criminal Appeals Nos.
45 to 49 of 1951.
    Appeals from the judgments and orders dated 20th August,
1951, of the High Court of Judicature at
    Simla  (Bhandari and Soni 33.) in Criminal  Writ  'Cases
Nos. 46 to 50 of 1951.
Jai Gopal Sethi (R. L. Kohli and Sri Ramkumar,
with him) for the appellants in Cr. Appeals Nos. 45 and 49.
20
N.C. Chatterjoe (Hardyal Hardy and R.L. Kohli with him)  for
the appellant in Cr. Appeal No. 46.
Hardyal Hardy for the appellant in Cr. Appeal No. 48. S.M.
S.M. Sikri, Advocate-General of the Punjab (N. S.
Doabia. with him) for the respondent in all the appeals.
M.C.  Setalvad,   Attorney-General for India (G.  N.  Joshi,
with him) for the Intervener in Cr. Appeal No. 45.
    1951. October 4. The Judgment of the Court was delivered
by
KANIA  C.J.--These are five companion appeals  from  the
judgments of the High Court of East Punjab and the principal
point  argued before us is as to the legality of the  deten-
tion of the appellants under the Preventive Detention Act on
the  ground  that  they are engaged  in  black-marketing  in
cotton piecegoods.
    The  Jullundur Wholesale Cloth Syndicate was  formed  to
work  out the distribution of cloth under the Government  of
Punjab  Control  (Cloth) Order passed  under  the  Essential
Supplies  Act.  Certain persons who held licences as  whole-
sale  dealers in cloth formed themselves into a  corporation
and  all cloth controlled by the Government was  distributed
in  the district to the retail quota holders  through  them.
The  Government allotted quotas to the retailers and  orders
were  issued  by  the Government for  giving  each  retailer
certain  bales  under  the distribution  control.   If  some
of  the retail licence holders did not take delivery of  the
quotas allotted to them under the Notification of the 4th of
October, 1950, issued by the Government of India, Department
of  Industries  and Supplies, it was, inter  alia,  provided
that  the  wholesale  syndicate may give the  bales  not  so
lifted  to another retail dealer. It may be noted  that  all
along  the  price  for the cloth to be  sold  wholesale  and
retail  had been fixed under Government orders.  The  Syndi-
cate  was  suspected to be dealing in black market  and  had
been  warned against its activities by the  District  Magis-
trate of Jullundur several times.  On the 7th of June, 1951,
21
an  order was issued by the District Organiser,  Civil  Sup-
plies  and Rationing, Jullundur, to the managing  agents  of
the wholesale cloth corporation, Jullundur City,  intimating
that they were strictly forbidden to dispose of any uplifted
stock  against unexpired terms without his prior  permission
in writing.  They were further directed that thenceforth  no
such  stock  would be allowed to be sold  to  an  individual
retailer,  but permission would be granted to sell the  same
to  associations of retailers only. It was stated that  this
letter was not in accordance with clause 5 of the  Notifica-
tion of the Government of India dated the 4th October, 1950,
which authorized the wholesale syndicate to be at liberty to
sell uplifted cloth to any other retailer or an  association
of  retail dealers of the same district. It may  be  further
noted  that the Cotton Cloth Control Order was in  operation
even prior to 1950.  For some time control on the  distribu-
tion  of cloth was lifted but the price remained  under  the
control  of  the Government.  During that time it  has  been
alleged that the appellants and several others sold cloth at
rates higher than those fixed by the Government.  Even  when
the  distribution and price were both controlled, the  manu-
facturing mills were allowed to sell at prices fixed by  the
Government a certain percentage of cloth which was not taken
by  the Government under its control. This was described  as
free  sale cloth and it was alleged that the appellants  and
several others were doing black-marketing in this free  sale
cloth.
By  an order passed by the District Magistrate  on  19th
June,  1951,  he directed that the  appellants  be  detained
under  section  3  (2) of the Preventive  Detention  Act  to
prevent  them  from acting in a manner  prejudicial  to  the
maintenance of supplies of cloth, essential to the  communi-
ty.  On the 2nd July, 1951, the District Magistrate, Jullun-
dur,  directed that the appellants be committed to  District
Jail,  Jullundur, from the 2nd July until the  1st  October,
1951.   The  appellants  were  detained  accordingly.    The
grounds for their detention were given to them on the  morn-
ing of the 6th July.  The grounds set out the activities of
22
the appellants  as managing agents or partners in  different
firms  or employees of the said firms or  corporations.   It
was  stated  ,that they had been disposing of  most  of  the
stocks  of cloth received for the Jullundur District in  the
black market at exhorbitant rates from June, 1949, to  Octo-
ber,  1950, during the period when control  on  distribution
was  removed  and that even after the reimposition  of  that
control  in October, 1950, they disposed of cloth which  has
been  frozen under the directions of Director of Civil  Sup-
plies in the short interval between the passing of the order
and  its service on them.  The second ground was in  respect
of  their  individual activities as members of the  firm  in
which they were partners in disposing of stocks of cloth  in
black  market at rates higher than the controlled  ones,  to
various dealers, through agents. The particulars were speci-
fied in Appendix 'A'.  They refer to the free sale cloth. In
the-third ground it was alleged that' by illegal means  they
deprived  the  rightful claimants of the various  stocks  of
cloth  with  a view to pass the same into  black  market  at
exorbitant  rates. We do not think it necessary to  go  into
greater  details  of  these grounds or refer  to  the  other
grounds.
    On the 9th of July, 1951, petitions under article 226 of
the Constitution of India were filed in the East Punjab High
Court asking for writs of habeas corpus against the State on
the  ground that the detention of the appellants  under  the
Preventive  Detention Act was illegal. The  District  Magis-
trate  filed his affidavit in reply challenging the  allega-
tion of mala fides and setting out in some detail  instances
of  the activities of the appellants and contended  that  on
the reports received by him he was satisfied that the deten-
tion  of  the appellants was necessary.   Early  in  August,
1951, the executive authorities cancelled the licence of the
appellants  as cloth dealers.  The High Court dismissed  the
petitions and the petitioners have come on appeal to us.
    Section  3 of the Preventive Detention Act,  1950,  pro-
vides  that the Central Government or the  State  Government
may, if satisfied with respect to any person that
23
with  a  view to preventing him from acting  in  any  manner
prejudicial  to  the maintenance of  supplies  and  services
essential to the community it is necessary so to do, make an
order directing that such person be detained.  The power  to
act in accordance with the terms of this provision was given
by section 3 (2) to a District Magistrate.  Such  Magistrate
however  was required to make a report to the State  Govern-
ment to which he was subordinate about the order and also to
send  the grounds on which the order had been made and  such
other  particulars as, in his opinion, had a bearing on  the
necessity of the order..
    It is not disputed that an order under section 3 (2)  of
the Preventive Detention Act to prevent black-marketing  can
be  passed  by the District Magistrate.  On  behalf  of  the
appellants  it  is contended that in the grounds  for  their
detention  reference  is made to their activities  prior  to
June,  1951, only.  This cannot be considered  objectionable
because having regard to those activities it is alleged that
the  satisfaction required under the section had arisen.  It
was  next argued that such loophole as existed in the  total
control of distribution and' sale and price of piecegoods in
the  district was sealed by the order of the District  Orga-
niser dated the 7th June, 1951. By virtue of that order  the
syndicate or corporation could not sell any cloth without an
express  order in writing from the District  Organiser,  and
therefore there could be no black-marketing after that  date
by any of the appellants and the order was therefore  unjus-
tified.   It  was next contended that in any  event  now  as
their  licences are cancelled they cannot deal in cloth  and
the  order of detention now maintained against them is  more
in  the nature of punishment than prevention. It was  argued
that orders under the Preventive Detention Act were for  the
purpose of preventing a person from acting in future in  the
objectionable way contemplated by the Act and it was  beyond
the  scope  of the Act to pass orders in  respect  of  their
alleged activities anterior to June, 1951.
    In  our  opinion the High Court  approached  the  matter
quite correctly. Instances of past activities are relevant
24
to  be  considered in giving rise to the  subjective  mental
conviction  of the District Magistrate that  the  appellants
were  likely  to indulge in  objectionable  activities.  The
grounds which were given for the detention are relevant  and
the  question whether they are sufficient or not is not  for
the decision of the Court. The Legislature has made only the
subjective  satisfaction of the authority making  the  order
essential for passing the order. The contention that because
in the Amending Act of 1951 an Advisory Board is  constitut-
ed,  which can supervise and override the decision taken  by
the executive authority, and therefore the  question whether
the grounds are sufficient to give rise to the  satisfaction
has become a justifiable issue in Court, is clearly unsound.
The  satisfaction  for making the initial order is  and  has
always been under the Preventive Detention Act, that of  the
authority  making  the order.  Because the Amending  Act  of
1951  establishes a supervisory authority,  that  discretion
and subjective test is not taken away and by the  establish-
ment of the Advisory Board, in our opinion, the Court is not
given  the  jurisdiction to decide  whether  the  subjective
decision of the authority making the order was right or not.
Proceeding on the footing, therefore, that the  jurisdiction
to  decide whether the appellants should  be detained  under
the Preventive Detention Act on the grounds conveyed to  the
appellants  is  of the District Magistrate. In  the  present
cases,  two arguments were advanced on behalf of the  appel-
lants. It was strenuously urged that by reason of the  order
of  the District Organiser of the 7th June, 1951,  the  only
loophole  which remained in the scheme of  distribution  and
sale of cloth under control of the Government was sealed and
it was impossible after that order to do any  blackmarketing
by  any  of the appellants.  We are unable  to  accept  this
contention. In the first place, this order appears to be  an
administrative  order and is in the nature of a warning.  It
is at variance with the provisions of clause 5 of the  Order
of the Central Government of the 4th October, 1950. Moreover
this  order does not bring about the result claimed for  it.
A lot
25
of cloth which the manufacturers are permitted to distribute
through persons outside the Government agencies can still be
secured and sold at exhorbitant rates, i.e., at rates higher
than those fixed by the Government.  The second argument was
that  as  the licences of the appellants are  now  cancelled
they cannot deal in textile cloth at all and therefore there
can  be no apprehension of their indulging in  black  market
activities.  We  are  unable to accept  this  argument  also
because it is common knowledge that licences can be obtained
in  the name of nominees. Again while these people  may  not
have  their licences in Jullundur District they may have  or
may  obtain licences in other districts. From the fact  that
their  licences have been cancelled a month after the  order
of  detention  was passed we are unable to hold that  it  is
impossible  on that ground for the appellants to indulge  in
black market activities. In this connection an extract  from
the further affidavit of the District Magistrate of  Jullun-
dur  dated  1st August, 1951, may be usefully  noticed.   He
stated:
    "There  have  been  orders for the  release  of  certain
stocks  of  cloth in respect of other mills,  as  free  sale
cloth  after the 9th June, 1951.  Any quantity of cloth  not
paid  for and lifted by the owners' nominees will revert  to
the  Mills for free sale: vide letter No. CYC-2/ SLM,  dated
the  31st May, 1951, from the Textile Commissioner,  Bombay,
to  all selected Mills in Bombay and Ahmedabad.  This  cloth
can be purchased by any wholesale dealer of cloth of  India,
without any restriction. Not only this, free sale cloth  can
be  transported from one district to another without a  per-
mit: vide Memo No. 28894-CS (C) 50/48791, dated 2nd January,
1951,  from the Joint Director, Civil Supplies,  and  Under-
Secretary  to Government Punjab to the  District  Organiser,
Civil  Supplies  and Rationing, Ludhiana.  Again  free  sale
cloth is also procurable from individual firms who conspired
to  make  profit by black marketing.  The  only  information
which  is supplied by a purchaser of wholesale cloth to  the
District Magistrate is as to what quantity of such cloth has
been imported
4
26
into  the district. According to the report of the  District
Organiser  no such cloth was imported into Jullundur by  the
corporation but there are reasons to believe that the Corpo-
ration  had been making their purchases in free  sale  cloth