dedol-hf/india-case-legal-rag huggingface dataset:
the law of preventive detention would be defeated if  satis-
faction of the authority  concerned was subject to such   an
objective standard and was also subject to conditions as  to
legal proof and procedure.  In the 7th Schedule jurisdiction
to  make the law on this subject has been given for  reasons
connected  with defence etc. and the maintenance  of  public
order.  These  are subjects which concern the life  and  the
very  existence of the State. Every citizen is  presumed  to
know what behaviour is prejudicial to the life of the  State
or to its existence as an ordered State.   Considering  that
the  State  is presumed to have a government  that  conducts
itself  in  a  reasonable way and also  presuming  that  its
officers  usually will be reasonable men, it cannot be  said
that  in  making  "satisfaction of the  government"  as  the
standard  for  judging prejudicial acts of persons  who  are
subject to the law of preventive detention section 3 in  any
way contravenes article 22 of the constitution.
    Section  7 of the impugned Act gives full effect to  the
provisions  of  article 22 sub clause (5)  and  enacts  that
representation  has to be made to the Central or State  Gov-
ernment as the case may be.  It was impeached on the  ground
that  no machinery has been provided herein to consider  and
adjudicate  on  the merits of the  representation.  To  this
extent, as already indicated, the law is defective.   In the
absence of a machinery for the investigation of the  conten-
tions  raised  in the representation it may be open  to  the
detenu  to  move this Court under article 32  for  a  proper
relief.  It is,  however,  unnecessary to express any  opin-
ion  as to the precise remedy open to a detained  person  in
this respect.  The absence of a provision of this nature  in
the  statute  however would not make the  law  wholly  void.
Section 9 of the Act makes reference
30
232
to  the  advisory board obligatory in  cases  falling  under
sub-clause (iii) of clause (a) or clause (b) of  sub-section
(1) of section a within six weeks of the order.  The  proce-
dure  to be followed by the advisory board is laid  down  in
section 10.  Parliament has been authorized to lay down such
a  procedure to be followed by an advisory  board   in  sub-
clause   (c) of clause  (7). It was contended that  the  law
had not provided a personal hearing to the detenu before  an
advisory  board, nor had it given him a right to  lead  evi-
dence  to establish his  innocence.   In  my  opinion,  this
criticism  is not sound and does not in any  way  invalidate
the law. The advisory board has been given the power to call
for  such  information as it requires even from  the  person
detained.  It has also been empowered to examine the materi-
al placed before it in the light of the facts and  arguments
contained  in the representation.  The opportunity  afforded
is not as full as a person gets under normal judicial proce-
dure but when the Constitution itself contemplates a special
procedure  being prescribed for preventive detention  cases,
then  the  validity  of the law on that  subject  cannot  be
impugned on the grounds contended for.
    Section  11 of the Act was also impugned on  the  ground
that  it offended against the  Constitution inasmuch  as  it
provided for  preventive detention for an indefinite period.
This section in my opinion has to be read in the  background
of  the provision in sub-clause (3) of section 1 of the  Act
which  says  that the Act will cease to have effect  on  1st
April,   1951.  Besides, the words "for such  period  as  it
thinks fit" do not in any way offend against the  provisions
of article 22 wherein Parliament has been given the power to
make  a law fixing the maximum period for preventive  deten-
tion.  It has to be noted that Parliament has fixed a period
of  one  year  as the maximum period  for  the  duration  of
detention where detention has to be without reference to  an
advisory board.  In my opinion, there is nothing in  section
11 which is outside the constitutional limits of the  powers
of the supreme legislature.
233
It  is  section  12 of the Act which  was  assailed  by  the
learned  counsel for the petitioner rather vehemently.  This
section  is of a very controversial character.  It has  been
enacted  on  the authority of clause (7) of article  22  and
runs thus :--
  "(1) Any person detained in any of the following classes
of  cases  or under any of the following  circumstances  may
be    detained without obtaining the opinion of an  Advisory
Board for a period longer than three months, but not exceed-
ing  one year from the date of his detention, namely,  where
such person has been detained with a view to  preventing him
from acting in any manner prejudicial to-
    (a)  the defence of India, relations of India with  for-
eign powers or the security of India; or
    (b) the security of a State or the maintenance of public
order.
    (2) The case of every person detained under a  detention
order  to  which  the provisions of  sub-section  (1)  apply
shall,  within a period of six months from the date  of  his
detention,  be  reviewed  where the order was  made  by  the
Central  Government or a State Government, by  such  Govern-
ment, and where the order was made by any officer  specified
in sub-section (2) of section a, by the State Government  to
which  such officer is subordinate, in consultation  with  a
person who is, or has been, or is qualified to be  appointed
as, a Judge of a High Court nominated in that behalf by  the
Central Government or the State Government, as the case  may
be."
The section purports to comply with the conditions  laid
down  in clause (7) of article 22. It was,  however,  argued
that  in substance and reality it has failed to comply  with
any  of  the conditions laid down therein; that  it  neither
mentions  the circumstances under which nor the  classes  of
cases in which preventive detention without recourse to  the
machinery  of  an  advisory board could  be  permitted.  The
crucial  question  for consideration is whether  section  12
mentions any circumstances under which or defined the class-
es of cases in which authority was conferred by clause (7)
234
to dispense with an advisory board.   So far as I have  been
able  to  gather from opinions of text-book writers  on  the
subject  of  classification, the rule seems  clear  that  in
making  classification of cases there has to be  some  rela-
tionship  to the classification to the objects sought to  be
accomplished.   The question for consideration therefore  is
what object was sought to be accomplished when the Constitu-
tion included clause (7) in article 22.  It seems clear that
the real purpose of clause (7) was to provide for a  contin-
gency where compulsory requirement of an advisory board  may
defeat  the object of the law of preventive detention.    In
my opinion, it was incorporated in the Constitution to  meet
abnormal  and exceptional cases, the cases being of  a  kind
where an advisory board could not be taken into  confidence.
The authority to make such drastic legislation was entrusted
to  'the supreme legislature but with the further  safeguard
that  it can only enact a law     of such a  drastic  nature
provided  it prescribed the circumstances under  which  such
power had to be used or in the alternative it prescribed the
classes of cases or stated a determinable group of cases  in
which  this  could be done.  The intention was to  lay  down
some  objective standard for the guidance of  the  detaining
authority  on the basis of which without consultation of  an
advisory board detention could be ordered beyond the  period
of three months. In this connection it has to be  remembered
that  the  Constitution  must have thought  of  really  some
abnormal  situation  and      of some  dangerous  groups  of
persons when it found it necessary to dispense with a tribu-
nal  like  an advisory board which functions in  camera  and
which  is not bound even to give a personal hearing  to  the
detenu and whose proceedings are privileged.  The law on the
subject of preventive detention in order to avoid even  such
an  innocuous  institution could only be  justified  on  the
basis  of  peculiar circumstances  and  peculiar  situations
which  had to be objectively laid down and that was what  in
my  opinion was intended by clause (7).  If the  peculiarity
lies  in a situation outside 'the control or view of  a  de-
tained  person, then it may be said that the description  of
such a situation would
235
amount to a prescription of the circumstances justifying the
detention  for  a longer period than three months by  a  law
without the intervention of an advisory board'. If, however,
the abnormality relates to the conduct and character of  the
activities of a certain determinable group of persons,  then
that would amount to a class of cases which was contemplated
to  be  dealt  with under clause (7). In  such  cases  alone
arbitrary detention could be held justifiable by law  beyond
a period of three months.
    It was argued by the learned counsel for the  petitioner
that the phrase "circumstances under which, and the  classes
of cases in which" used in clause (7) had to be construed in
a   cumulative  sense;  on  the  other  hand,  the   learned
Attorney-General contended that the word "and" had been used
in this clause in the same sense as "or." He further  argued
that  even if the word "and" is not given that  meaning  the
true  construction of the phrase was that  Parliament  could
prescribe  either the circumstances or the classes of  cases
for  making  a law on the subject  of  preventive  detention
authorizing detention for a longer period than three  months
without  the machinery of an advisory board. In  Full  Bench
Reference  No. 1 of 1950, Das Gupta J. of the Calcutta  High
Court held that the intention of the legislature in enacting
the clause was that the law of preventive detention  author-
izing detention for a longer period than three months  with-
out the intervention of an advisory board had to fulfil both
the requirements laid down in clause (7) and not only one of
the requirements in the alternative.  The same view has been
expressed by my brother Sir Fazl Ali. I share this view with
him.  I would, however, like to consider this matter from  a
different  aspect  on  the assumption  that  the  contention
raised by the learned Attorney-General is right.
    Dealing  first  with  the question  whether  section  12
mentions  any circumstances, so far as I have been  able  to
see,  it does not prescribe any circumstances unless it  can
be said that the prejudicial acts for reasons connected with
the security of State, maintenance of public order, etc. are
both the circumstances as well as
236
the classes of cases.  In my opinion, this line of  approach
cannot  be held to be correct in the construction of  clause
(7) of article 22.  I am inclined to agree with the  learned
Attorney-General that the phrase "circumstances under which"
means some situation extraneous to the detenu's own acts, in
other  words,  it means some happening in the  country  with
which  the detenu is not concerned, such as a  situation  of
tense  communal feelings, an apprehended internal  rebellion
or  disorder, the crisis of an impending war or  apprehended
war, etc.  In such a situation the machinery of an  advisory
board could be dispensed with because it may become  cumber-
some or it may hamper the exercise of necessary powers.   In
this view of the matter I have no hesitation in holding that
no circumstances have been stated in section 12, though  the
section  ostensibly says so.  If it was permissible to  con-
jecture, it seems that the draftsman of section 12' repeated
the  words of clause' (7) of article 22 without an  applica-
tion  of his mind to the meaning of those words and  as  the
legislation  was passed in haste to meet an emergent  situa-
tion,  it suffers from the defects which all hasty  legisla-
tion suffer from.
I now proceed to consider whether section 12 has classi-
fied the cases in which detention for a longer period beyond
three  months  could be suffered by a  citizen  without  the
benefit of the machinery of an advisory board.  The  section
has placed five subjects out of the legislative list  within
its  ambit and these are described as the classes of  cases.
The question is whether it can be said that a mere selection
of all or any of the categories of the subjects for  reasons
connected with which a law of preventive detention could be'
made  under the 7th Schedule amounts to a classification  of
cases  as contemplated in clause (7) of article 22. Entry  9
of the Union List and Entry 3 of the Concurrent List of  the
7th  Schedule  lay down the ambit of  legislative  power  of
Parliament  on  the subject of preventive detention  on  the
following six subjects :--
     (1) Defence of India, (2) Foreign Affairs, (a) Security
of India, (4) Security of the State, (5) Mainten-
237
ance of public order, (6) Maintenance of supplies and  serv-
ices essential to the community.
    Clause  (4) of article 22 enjoins in respect of all  the
six  subjects that no law can provide for preventive  deten-
tion for a longer period than three months without reference
to an advisory board.  Clause (7) gives permission to make a
law for dispensing with an advisory board by a  prescription
of the circumstances and by a prescription of the classes of
cases in which such a dispensation can be made.  The  legis-
lative  authority under clauses (4)  and (7)in  my  opinion,
extends to all these six subjects.  The normal procedure  to
be followed when detention is intended to be beyond a period
of  three months in respect of the six subjects is  provided
in  sub-clause (4)  The extraordinary and unusual  procedure
was  intended, to be adopted in certain abnormal  cases  for
which  provision  could be made by a  parliamentary  statute
under clause (7). It seems to me, however, that section-  12
of  Act IV of 1950 has reversed this process quite  contrary
to  the intention of the Constitution.  By this section  Act
IV of 1950 has dispensed with the advisory board in five out
of  the  six  subjects above mentioned  and  the  compulsory
procedure  of an advisory board laid down in clause  (4)  of
article  22 has been relegated to one out of these six  sub-
jects.   This has been achieved by giving a construction  to
the  phrase  "circumstances under which and the  classes  of
cases  in which" so as to make it co-extensive and  cotermi-
nous  with  the "subjects of legislation."  In  my  opinion,
this  construction of clause (7) is in contravention of  the
clear  provisions  of article 22, and makes  clause  (4)  of
article  -9,2 to all intents and purposes nugatory.  Such  a
construction of the clause would amount to the  Constitution
saying  in  one breath that a law  of  preventive  detention
cannot provide for detention for a longer period than  three
months  without  reference to an advisory board and  at  the
same  breath  and moment saying that Parliament,  if  it  so
chooses, can do so in respect of all or any of the  subjects
mentioned  in  the legislative field.  If that  was  so,  it
would  have been wholly unnecessary to provide such a  safe-
guard in the Constitution on a matter
238
which very seriously affects personal liberty.  On the other
hand, it would be a reasonable construction of the clause to
hold  that  the Constitution authorized Parliament  that  in
serious  classes  of cases or in cases of  those  groups  of
persons who are incorrigible or whose activities are  secret
the  procedure  of an advisory board may well  be  dispensed
with, that being necessary in the interests of the State. On
the other construction as adopted by the framers of  section
12,  the Constitution need not have troubled itself by  con-
ferring an authority on Parliament for making such a law.
    Moreover,  if that was the intention, it would  have  in
very  clear  words  indicated this by  drafting  article  22
clause (4) thus:
    "Unless otherwise provided by Parliament no law  provid-
ing for preventive detention shall authorize detention for a
longer period than three months unless an Advisory Board has
investigated   the   sufficiency  of  the  cause   of   such
detention."
    The words "Unless otherwise provided for by  Parliament"
would  have been in accord with the construction  which  the
framers of section 12 have placed on article 22 clause (7).
    I am further of the opinion that the construction placed
by the learned Attorney-General on clause (7) of article  22
and adopted by the framers of Act IV of 1950 creates a  very
anomalous  situation.  The matter may be examined  from  the
point of view of the law of preventive detention for reasons
connected  with supplies and services essential to the  life
of the community.  This subject has been put under section 9
in  Act  IV of 1950.  Suppose a tense situation  arises  and
there is a danger of the railway system being sabotaged  and
it  becomes necessary to pass detention orders against  cer-
tain persons.  According to Act IV of 1950 in such a serious
state  of  affairs  the procedure of an  advisory  board  is
compulsory,  while on the other hand, if there is an  appre-
hension of disturbance of public order by reason of a  wrong
decision  of an umpire at a cricket match or on  account  of
conduct  of persons celebrating the festival of  Holi,  then
detention beyond three
239
months  can  be  ordered without reference  to  an  advisory
board.  Could such an anomalous result be in the  contempla-
tion of the framers of the Constitution ?  The  construction
that I am inclined to place on the section is in accord with
the  scheme  of the law of punitive detention.  Hurt  is  an
offence  under the Indian Penal Code and this is one of  the
subjects  of punitive detention.  The cases on  the  subject
have  been classified in different groups,  namely,   simple
hurt,  grievous hurt, grievous hurt with dangerous  weapons,
grievous  hurt  to  extort a confession,  grievous  hurt  to
restrain a public officer from doing his duty, grievous hurt
by a rash act, and grievous hurt on provocation. Even simple
hurt  has been classified in different categories. The  sub-
ject of assault has also been similarly dealt with. Sections
352  to  356  deal with cases classified  according  to  the
gravity  of  the  offence, i.e., cases  of  simple  assault,
assault  on a public servant, assault on women,  assault  in
attempt to'commit theft, assault for wrongfully confining  a
person and assault on grave provocation have been separately
grouped.  Another illustration is furnished by the  Criminal
Procedure Code in the preventive sections 107 to 110.  These
deal  with different groups of persons; vagrants are in  one
class, habitual offenders in another, bad characters in  the
third and disturbers of peace in the fourth.  It seems  that
it  is  on  lines similar to these that it  must  have  been
contemplated by the Constitution that classes of cases would
be  prescribed  by Parliament, but this has not  been  done.
The  Constitution has recognised varying scales of  duration
of  detention  with the idea that this will  vary  with  the
nature  of  the apprehended act, detention for a  period  of
three  months  in  ordinary cases, detention  for  a  longer
period than three months with the intervention of an adviso-
ry board in more serious cases, while detention for a longer
period  than  three months without the  intercession  of  an
advisory board for a still more dangerous class and for acts
committed  in grave situations.  It can hardly be said  that
all cases of preventive detention for reasons connected with
the maintenance of public order stand on the same footing in
the degree of gravity and deserve the same
240
duration  of  detention  and all cases  connected  with  the
maintenance  of supplies and services essential to the  life
of  the  community stand in the matter of their  gravity  on
such  a  footing as to require a lenient treatment.   It  is
true  that in a sense all persons who act  prejudicially  to
the defence of India may be comprehensively said to form one
group  and  similarly persons who act prejudicially  to  the
maintenance  of supplies and services essential to the  life
of the community may form another class but the question is,
whether it was in this comprehensive sense that  classifica-
tion was intended by the  Constitution in clause (7) or  was
it  intended in a narrower and restricted sense ? It has  to
be remembered that the law under clause (7) was intended  to
provide  detention for a longer period and such a  law  very
seriously  abridges personal liberty  and in this  situation
giving a narrower and restricted meaning to this  expression
will  be in accordance with well established canons of  con-
struction of statutes.
The wide construction of clause (7) of article 22 brings
within  the  ambit  of the clause all the  subjects  in  the
legislative  list and very seriously abridges  the  personal
liberty of a citizen.  This could never have been the inten-
tion  of  the framers of the Constitution.  The  narrow  and
restricted  interpretation is in accord with the  scheme  of
the  article and it also operates on the whole field of  the
legislative list and within that field it operates by demar-
cating  certain portions out of each subject which  requires
severe treatment.  If I may say so m conclusion, section  12
treats  the lamb and the leopard in the same  class  because
they  happen to be quadrupeds.  Such a classification  could
not  have  been in the thoughts of  the  Constitution-makers
when  clause  (7)  was introduced in article  22.   For  the
reasons given above, I am of the opinion that section 12  of
Act  IV of 1950 does not fulfil the requirements  of  clause
(7) of article 22 of the Constitution and is not a law which
falls  within the ambit of that clause. That being so,  this
section  of Act IV of 1950 is void and by reason of  it  the
detention  of the petitioner cannot be justified.  There  is
no other provision in
241
this  law  under  which he can be detained  for  any  period
whatsoever.
It was argued that it was neither practicable nor possi-
ble  to make a classification on any definite basis  in  the
case of apprehended acts of persons whose activities are  of
a  prejudicial character to the maintenance of public  order
or to the security of the State or to the defence of  India.
This contention to my mind is not sound.  Such a classifica-
tion  was made in the rules  under the Defence of India  Act
by  defining  "a  prejudicial act" in  regulation  34.  Mere
difficulty in precisely ascertaining the groups or in defin-
ing objectively the conduct of such groups is no ground  for
not  complying with the clear provisions of the  statute  or
for  disobeying  it.  I see no difficulty  whatsoever  if  a
serious  effort  was made to comply with the  provisions  of
clause (7). I cannot see that the compulsory requirement  of
an  advisory board is likely to lead to such  disastrous  or
calamitous results that in all cases or at least in five out
of  the six subjects of legislation it becomes necessary  to
dispense with this requirement. The requirement of an  advi-
sory board is in accordance with the preamble of the Consti-
tution  and  is the barest minimum that can make  a  law  of
preventive  detention to some little degree tolerable  to  a
democratic  Constitution.   Such a law also  may  have  some
justification  even  without  the requirement of an advisory
board   to meet certain defined dangerous situations  or  to
deal  with a class of people who are a danger to  the  State
but without such limitation the law would be destructive  of
all  notions of personal liberty.  The Constitution must  be
taken  to have furnished an adequate safeguard to its  citi-
zens when it laid down certain conditions in clause (7)  and
it could not be considered that it provided no safeguard  to
them  at  all  and that the words used in  clause  (7)  were