dedol-hf/india-case-legal-rag huggingface dataset:
territory of India" guaranteed under article 19 (1) (d) and,
as  such,  was  liable to be tested with  reference  to  its
reasonableness  under  clause (5) of that  article.  It  was
decided by a majority of 5 to 1 that a law which  authorises
deprivation  of  personal liberty did not  fall  within  the
purview of article 19 and its validity was not to be  judged
by  the criteria indicated in that article but  depended  on
its compliance with the requirements of articles 21 and  22,
and  as section 3 satisfied those requirements, it was  con-
stitutional.   If the learned Judges in the High  Court  had
paid  close  attention to the judgments  delivered  in  this
Court, they would have found that there was nothing  illogi-
cal  in that view and no conflict between the  decisions  in
that case and in the other cases to which reference has been
made.  The  observations of the Chief Justice  in  Gopalan's
case(1) make the position quite clear:
" As the preventive detention order results in the deten-
tion  of  the applicant in a cell it was  contended  on  his
behalf that the rights specified in article 19 (1) (a), (b),
(c),  (d),  (e), and (g)have been infringed. It  was  argued
that because of his detention he cannot have a free right to
speech  as  and where he desired and the same  argument  was
urged  in  respect of the rest of the  rights  mentioned  in
sub-clauses  (b),  (c),  (d), (e) and  (g).   Although  this
argument  is advanced in a case which deals with  preventive
detention,  if correct, it should be applicable in the  case
of  punitive detention also, to any one sentenced to a  term
of  imprisonment  under the relevant section of  the  Indian
Penal  Code.  So considered, the argument  must  clearly  be
rejected. In spite of the saving clauses (2) to (6), permit-
ting abridgement of the rights connected with each of  them,
punitive detention under several sections of the Penal Code,
e.g., for theft, cheating, forgery and even
(1) [1950] S.C.R. 88.
457
ordinary  assault, will be illegal. Unless  such  conclusion
necessarily  follows  from the article, it is  obvious  that
such  construction  should be avoided. In my  opinion,  such
result  is clearly not the outcome of the Constitution.  The
article has to be read without any preconceived notions.  So
read,  it clearly means that the legislation to be  examined
must  be directly in respect of one of the rights  mentioned
in  the  sub-clauses.  If there is  a  legislation  directly
attempting  to  control  a citizen's freedom  of  speech  or
expression,  or his right to assemble peaceably and  without
arms,  etc., the question whether that legislation is  saved
by the relevant saving clause of article 19 will arise.  If,
however,  the legislation is not directly in respect of  any
of these subjects, but as a result of the operation of other
legislation, for instance, for punitive or preventive deten-
tion, his right under any  of these sub-clauses is abridged,
the  question  of  the application of article  19  does  not
arise. The true approach is only to consider the  directness
of  the legislation and not what will be the result  of  the
detention otherwise valid, on the mode of the detenu's life.
On that short ground, in my opinion, this argument about the
infringement  of  the  rights mentioned in  article  19  (1)
generally  must  fail.  Any other construction  put  on  the
article, it seems to me, will be unreasonable."(1)
    Similar  conclusions  expressed  by  the  other  learned
Judges  will  be found at pages 194, 229, 256  and  305.  It
follows that the petitions now before us are governed by the
decision  in  Gopalan's case(1),  notwithstanding  that  the
petitioners' right under article 19 (1)(a) is abridged as  a
result  of  their detention under the Act. The  anomaly,  if
anomaly  there be in the resulting position, is inherent  in
the  structure and language of the relevant articles,  whose
meaning  and effect as expounded by this Court by  an  over-
whelming majority in the cases referred to above must now be
taken to be settled law, and courts in this country will  be
serving no useful purpose by discovering supposed  conflicts
and  illogicalities and recommending parties  to  re-agitate
the points thus settled.
(1) [1950] S.C.R. 88, 100-101.
458
    Mr.  Hardy  next contended that, in view of  the  recent
decision  of this Court in The State of Bombay v.  Atma  Ram
Sridhar Vaidya(1), the grounds of detention communicated  to
each  of  the petitioners must be held to be too  vague  and
indefinite to enable them to make their "representations" to
the  Chief  Commissioner,  Delhi, and  the  requirements  of
clause (5)of article 22 not having thus been complied  with,
the petitioners were entitled to be set at liberty.  Accord-
ing  to  Mr. Hardy it was not sufficient that the  time  and
place of the alleged speeches and their general effect  were
indicated,  but  it was also necessary  that  the  offending
passages or at least the gist of them should be communicated
in order to enable the petitioners to make effective  repre-
sentations.
    In  the case relied on, this Court, no doubt, held by  a
majority  that,  though the first part of  article  22  (s),
which  casts  an obligation on the  detaining  authority  to
communicate  the grounds of the order of detention would  be
sufficiently complied with if the" deductions or conclusions
of  facts  from  facts" on which the order  was  based  were
disclosed,  the latter part of the clause, which confers  on
the  person detained the right of making a  "representation"
against the order, imposed, by necessary implication, a duty
on the authority to furnish the person with further particu-
lars  to  enable  him to make his  representation.   It  was
further held that the sufficiency of this "second communica-
tion" of particulars was a justiciable issue, the test being
whether  "it is sufficient to enable the detained person  to
make  a representation which, on being considered, may  give
relief to the detained person."  While the communication  of
particulars  should, subject to a claim of  privilege  under
clause  (6), be" as full and adequate as  the  circumstances
permit",  it did not, however, follow from clause  (6)  that
"what  is  not stated or considered to be withheld  on  that
ground  must  be disclosed and if not disclosed there  is  a
breach  of a fundamental right.  A wide latitude is left  to
the  authorities in the matter of disclosure." Referring  to
the use of the term
(1) [1951] S.C.R. 167.
459
"vague" in this connection,. it was remarked: "If on reading
the  ground furnished it is capable of  being  intelligently
understood and is sufficiently definite to furnish materials
to  enable  the  detained person to  make  a  representation
against the order of detention, it cannot be called vague"
    This  decision  does not, in our  opinion,  support  the
broad  proposition contended for by Mr. Hardy that  wherever
an  order  of detention is based upon speeches made  by  the
person sought to be detained, the detaining authority should
communicate to the person the offending passages or at least
the  gist  of  such passages on pain  of  having  the  order
quashed  if it did not. In the cases now before us the  time
and  place at which the speeches were alleged to  have  been
made  were  specified and their general  nature  and  effect
(being  such  as to excite disaffection between  Hindus  and
Muslims)  was also stated.  It is difficult to see  how  the
communication  of particular passages or their  substance  -
one of the petitioners denied having made any speech on  the
day specified--was necessary in addition to the  particulars
already  given,  to  enable the petitioners  to  make  their
representations. It should be remembered in this  connection
that the Court is not called upon in this class of cases  to
judge  whether  or not the speech or  speeches  in  question
constituted a prejudicial act falling within the purview  of
section  3 of the Act as it is called upon  in  prosecutions
for  offences  under  section 124A or section  153A  of  the
Indian  Penal Code to find whether the speech attributed  to
the  accused person constituted an offence under those  sec-
tions.  That is a matter for the detaining authority  to  be
satisfied about.  Nor do these cases belong to the  category
where a reference had to be made to the Advisory Board under
the Act, so that any attempt by the petitioners to rebut the
inference  drawn  by  the  detaining  authority  from  their
speeches  had to be made only before the executive  authori-
ties.  In such circumstances the suggestion that without the
communication  of the offending passages or their  substance
the petitioners were not in a position to make their  repre-
sentations
460
to the executive authorities sounds unreal and is devoid  of
substance.   It  may  be possible to  conceive  of  peculiar
situations  where perhaps the person detained on  ground  of
prejudicial speeches might be in a better position to make a
representation if he was given the objectionable passages or
the  gist  of them, but the present cases are  not  of  such
peculiar  character.   On the other hand,  cases  have  come
before  this Court where speeches were alleged to have  been
made  after  midnight  at secret gatherings  of  kisans  and
workers inciting them to violence, crime and disorder.  Such
allegations could only be based in most cases on information
received  by  the executive  authorities  from  confidential
sources and it would not be practicable in all such cases to
have a record made of the speeches delivered.  To hold  that
article 22 (5) requires that, wherever detention is grounded
on  alleged  prejudicial speeches, the  detaining  authority
should indicate to the person detained the passages which it
regards as objectionable would rob the provisions of the Act
of much of their usefulness in the very class of cases where
those   provisions were  doubtless primarily intended to  be
used  and where their use would be most legitimate.  In  the
case  of these petitioners, no doubt, the speeches are  said
to have been made at public meetings, and it is not suggest-
ed  on behalf of the respondents that no record was made  of
the speeches, so that the details asked for could have  been
furnished.   The omission to  do so, for which no reason  is
disclosed  in these proceedings, is regrettable, as  it  has
given  rise to avoidable grievance and complaint.   The  au-
thorities  who feel impelled in discharge of their  duty  to
issue  orders of detention will do well to bear in mind  the
following remarks of the Chief Justice in the case  referred
to above:
"In numerous cases that have been brought to our notice,
we  have  found  that there has been  quite  an  unnecessary
obscurity on the part of the detaining authority in  stating
the grounds for the order. Instead of giving the information
with  reasonable details, there is a deliberate  attempt  to
use the minimum number
461
of  words  in  the communication conveying  the  grounds  of
detention.  In our opinion, this attitude is quite  deplora-
ble".
This,  however, does not affect our conclusion in  these
cases  that  the  grounds communicated  to  the  petitioners
contain sufficient particulars to enable them to make  their
representations  to  the authority concerned, and  that  the
requirements of article 22 (5) have thus been complied with.
    It  is also urged that the orders of detention were  bad
because  they  did not specify the period during  which  the
petitioners  were to be under detention. This point  is  now
concluded  against the petitioners by the decision  of  this
Court in Ujager Singh v. The State of Punjab (1) and  Jagjit
Singh  v. The State of Punjab (2) where it was  pointed  out
that  as section 12 of the Act itself prescribed  a  maximum
period  of  one year for detention thereunder,  such  orders
could not be said to be of indefinite duration and  unlawful
on that ground.
    Lastly, it was said that the petitioners were  prominent
members of a political organisation which was opposed to the
ideals  and  policies of the party in power,  and  that  the
orders of detention were made "for the collateral purpose of
stifling  effective  political  opposition  and   legitimate
criticism of the policies pursued by the Congress Party  and
had  nothing  to do with the maintenance of  public  order".
Allegations  of mala fide conduct are easy to make  but  not
always  as easy to prove.  The District Magistrate  has,  in
his affidavit filed in these proceedings, stated that,  from
the  materials placed before him by persons  experienced  in
investigating matters of this kind, he was satisfied that it
was  necessary  to  detain the petitioners with  a  view  to
preventing  them from acting in a manner prejudicial to  the
maintenance of public order, and he has emphatically repudi-
ated  the  purpose and motive imputed to him. We  have  thus
allegations on the one side and denial on the other, and the
petitioners  made no attempt to discharge the burden,  which
undoubtedly lay upon them, to prove that the District
(1) Petition No. 149 of 1950.  (2) Petition No. 167 of 1950.
462
Magistrate  acted mala fide in issuing the orders of  deten-
tion.
The petitions are dismissed.
MAHAJAN  J.--These three petitions under article  82  of
the Constitution of India were presented by Prof. Ram Singh,
Bal  Raj Khanna and Ram Nath Kalia, all three of  whom  were
arrested  and placed in detention on the 22nd August,  1950,
under the orders of the District Magistrate of Delhi,  under
the  Preventive  Detention Act, 1950.  The  petitioners  are
respectively,  the President, Vice-President and the  Secre-
tary  of  the Delhi State Hindu Mahasabha.  The  grounds  of
detention  supplied  to them are  almost  identical.   Those
furnished to Prof. Ram Singh read as follows :--
    "In  pursuance of section 7 of the Preventive  Detention
Act,  you are hereby informed that the grounds on which  the
detention order dated August 22, 1950, has been made against
you are that your speeches generally in the past and partic-
ularly on the 13th and 15th August, 1950, at public meetings
in  Delhi have been such as to excite  disaffection  between
Hindus and Muslims and thereby prejudice the maintenance  of
public order in Delhi and that in order to prevent you  from
making such speeches it is necessary to make the said order.
    You are further informed that you are entitled to make a
representation  against your detention to the State  Govern-
ment, that is, the Chief Commissioner, Delhi."
The  grounds supplied to the other    two  petitioners  were
the same except that in the     case of Bal Raj Khanna  only
the  15th August, 1950,   is mentioned as the date on  which
the  public speech  was made, and in the case of  the  third
petitioner, it is only the 13 th August, 1950.
Mr.  Hardy  on behalf of the petitioners. inter  alia  urged
that the grounds served on the petitioners as justifying the
orders of detention are quite indefinite and are not  suffi-
cient to enable them to make an effective representation  to
the State Government against
463
their detention and that being so, their detention is  ille-
gal.
An  affidavit  of  the District  Magistrate  was  placed
before  us at the hearing of the cases stating that  he  was
satisfied  that  the petitioners'  speeches  generally,  and
particularly  those made on the 13th and 15th August,  1950,
at  public  meetings  in Delhi had been such  as  to  excite
disaffection between Hindus and Muslims.  No particulars  of
the  offending  words or passages or any indication  of  the
nature  of  the  language employed by  the  petitioners  was
mentioned  either  in  the grounds  or  in  this  affidavit.
Reference  was made to two speeches of the 13th and 15th  in
the  case  of the first petitioner and to  only  one  speech
delivered  on  the 13th and 15th respectively by  the  other
two. So far as the earlier speeches are concerned, it is not
even stated on what occasions, on what dates and during what
years were those speeches made or delivered. After a  refer-
ence to the dates of the two speeches, the conclusion  drawn
by the District Magistrate has been mentioned. The  question
for  decision  is whether what is stated in the  grounds  is
sufficient  material on the basis of which  the  fundamental
right conferred on the petitioners by article 22 (5) of  the
Constitution can be adequately exercised and whether without
knowing  the  substance  of the offending  passages  in  the
speeches  from  which the inference has been  drawn  by  the
District Magistrate it is possible to prove that this infer-
ence is not justified.
    After  considerable thought I have reached the  decision
that  these cases fall within the ambit of the  decision  of
this  Court  in  The State of Bombay v.  Atma  Ram  Shridhar
Vaidya  (1).   In that case certain general  principles  ap-
plicable to cases of this nature were stated by the  learned
Chief  Justice, who delivered the majority judgment, in  the
following terms:
    (1) That if the representation has to be intelligible to
meet  the charges contained in the grounds, the  information
conveyed to the detained person must
 (1) [1951] S.C.R. 167.
        60
464
be sufficient to attain that object.  Without getting infor-
mation sufficient to make a representation against the order
of  detention  it is not possible for the man  to  make  the
representation. Indeed, the right will be only illusory  but
not a real right at all.
    (2) That while there is a connection between the obliga-
tion  on  the  part of the detaining  authority  to  furnish
grounds  and the right given to the detained person to  have
an earliest opportunity to make the representation, the test
to be applied in respect of the contents of the grounds  for
the two purposes is quite different. For the first, the test
is  whether it is sufficient to satisfy the  authority.  For
the second, the test is, whether it is sufficient to  enable
the detained person to make the representation at the earli-
est  opportunity. On an infringement of either of these  two
rights the detained person has a right to approach the court
and  to  complain that there has been an infringement  of  a
fundamental right and even if the infringement of the second
part  of the right under article 22(5) is established he  is
bound to be released by the court.
    (3)  That it cannot be disputed that the  representation
mentioned  in the second part of article 22(5) must  be  one
which  on being considered may give relief to the  detaining
person.  It was pointed out that in the numerous cases  that
had  been  brought to the notice of the court it  was  found
that  there had been quite an unnecessary obscurity  on  the
part  of the detaining authority in stating the grounds  for
the  order, and that instead of giving the information  with
reasonable details, there is a deliberate attempt to use the
minimum  number of words in the communication conveying  the
grounds  of  detention and that such an attitude  was  quite
deplorable.
    In  my  opinion,  these observations  have  an  apposite
application  to the grounds furnished to the petitioners  in
the  present cases.  The speeches alleged to have been  made
by  the petitioners were made in public meetings  and  could
not  be described as of a confidential nature and no  privi-
lege in respect of them was
465
claimed  under  article 22 (6) of  the  Constitution.   That
being  so, the material on the basis of which  the  District
Magistrate  drew  the inference that  these  speeches  would
cause  or were likely to cause disaffection  amongst  Hindus
and Muslims should have been communicated to the petitioners
so that they may be able to make a representation, which  on
being considered may give relief to them.  For that  purpose
either  the  words  used by them or  the  substance  of  the
speeches  should  have been communicated to the  detenus  so
that  they may be able to prove that such words or  passages
never  formed part of the speeches and have been  introduced
in  them  as a result of some error or  that  no  reasonable
person  could  draw an inference from them that  those  were
likely  to cause hatred and enmity between the two  communi-
ties.  The sufficiency of the material supplied is a  justi-
ciable issue, though the sufficiency of the grounds on which
the detaining authority made up his mind is not a  justicia-
ble  issue. In my opinion, in the absence of any  indication
in  the  grounds as to the nature of the words used  by  the
detenus  in their speeches from which an inference has  been
drawn against them they would not be able fully to  exercise
their fundamental right of making a representation and would
not  be able to furnish a proper defence to the charge  made
against them.
    Envisaging oneself in the position of a person asked  to
draw  out a written representation on behalf of the  detenus
on  the  materials supplied to them, the  effort  could  not
proceed  beyond  a bare denial of the speeches  having  been
made,  or  a bald statement that no words  were  used  which
could  possibly excite disaffection between Hindus and  Mus-
lims.   Such  a representation would be  an  idle  formality
inasmuch  as  mere denials without any cogent  arguments  to
support them would convince nobody.  Without a knowledge  of
the  offending words or passages, or their substance, it  is
not  possible  to argue that the inference drawn  is  not  a
legitimate one or to allege that the words used fall  within
the  ambit  of legitimate criticism permissible in  law  and
cannot be considered to excite disaffection
466
amongst Hindus and Muslims.  The phraseology employed by the
detaining  authority  in the charge sheet  supplied  to  the
detenus  seems to have been borrowed from the language  used
in sections 124A and 153A of the Indian Penal Code. Judicial
literature abounds in cases where words and passages  likely
to  cause disaffection between Hindus and Muslims  or  which
have that effect have been considered and discussed. In  the
words  objected to were known, the representation on  behalf
of the detenus could easily have been drawn up with the help
of  judicial  precedents and reasoning  considered  good  in
those  cases.  Again, without knowing the substance  of  the
offending  words from which the inference has been drawn  by
the detaining authority it is not even possible to urge that
these  words were merely a quotation from some known  author
or  that  the words used fall  within  legitimate  religious
propaganda  permitted by article 25 of the  Constitution  or
concern the propagation of some political creed to which  no
objection  could  be  taken.  As regards  the  two  speeches
alleged to have been given by the detenus, if the allegation
that they were such as to excite disaffection between Hindus
and  Muslims  is  correct, the detenus were  guilty  of  the
offence  under  section 153A of the Indian  Penal  Code  and
could not only have been punished for the offence under that
section but could also have been kept out of harm's way  for
the  future  by that procedure.  A charge sheet  under  that
section  or in a trial under section 124A which uses  analo-
gous  language would have been defective if it did not  men-
tion the substance of the speeches alleged to have been made
by  the  person charged.  [Vide Chint Ram  v.  Emperor  (1);
Chidambaram Pillai  v.  Emperor(2); Mylapore Krishnaswami v.
Emperor(3).]   In  some  of these cases the  charge  was  in
substance  similar  to the charge here.  If a charge  in  an
open trial for an offence under these sections is  defective
without  the  substance of the words used  or  the  passages
being cited therein, a fortiori, the material supplied in  a
preventive
(1)  A.I.R.  1931 Lah. 186.    (3) I.L.R. 32 Mad.  384.
(2) I.L.R. 32 Mad. 3.
467
detention  case  on a similar charge should be  regarded  as
insufficient when a man has not even a right of being  heard
in  person  and has merely to defend himself by means  of  a
written  representation.  It has to be  remembered  in  this
connection  that  the phrase  "excite  disaffection  amongst