dedol-hf/india-case-legal-rag huggingface dataset:
is  imposed,  those whose duty it is to decide it  must  act
judicially, and they must deal with the question referred to
them without bias  and  must  give to  each  of  the parties
an opportunity of presenting its case, and that the decision
must be come to in the spirit and with the sense of  respon-
sibility of a tribunal whose duty it is to mete out justice.
Commenting upon this case, which is generally regarded as an
extreme  case,  Mr. Gavin Simonds, who afterwards  became  a
member of the House of Lords observes :--
(1) [1915] A.C.120.
167
    "I  think you would agree that if the  subjectmatter  of
such  proceedings as arc here indicated was the  liberty  of
the  subject,  or indeed his life, you would regard  such  a
judicial  procedure as outrageous."  (See C.K. Allen's  "Law
and Orders," page 167).
I have particularly referred to cases which were  before
administrative  tribunals,  because I have to deal  in  this
case with preventive detention which is said to be an execu-
tive  act and because I wish to point out that  even  before
executive authorities and administrative tribunals an  order
cannot  generally be passed affecting one's  rights  without
giving one such hearing as may be appropriate to the circum-
stances of the case.  I have only to add that Halsbury after
enumerating  the most important liberties which  are  recog-
nized  in England, such as right of personal freedom,  right
to  freedom of speech, right of public meeting,  etc.,  adds
:--
    "It seems to me that there should be added to this  list
the following rights which appear to have become well-estab-
lished--the right of the subject to have any case  affecting
him  tried  in  accordance with the  principles  of  natural
justice, particularly the principles that a man may not be a
judge  in his own cause, and that no party ought to be  con-
demned  unheard,  or to have a decision  given  against  him
unless he has been given a reasonable opportunity of putting
forward his case  ......  "(Halsbury's Laws of England,  2nd
Edition, volume 6, page 392).
    The question is whether the principle that no person can
be  condemned  without a hearing by an  impartial   tribunal
which is well-recognized in all modern civilized systems  of
law  and which Halsbury puts on a par  with  well-recognized
fundamental rights cannot be regarded as part of the law  of
this  country.  I must confess that I find it  difficult  to
give  a  negative answer to this  question.   The  principle
being part of the British system of law and procedure  which
we  have inherited, has been observed in this country for  a
very  long  the  and is also deeply rooted  in  our  ancient
history, being the basis of the
168
panchayat system from the earliest times.   The whole of the
Criminal  Procedure  Code, whether it deals  with  trial  of
offences or with preventive or quasiadministrative  measures
such as are contemplated in sections 107, 108, 109, 110  and
145,  is based upon the foundation of this principle, and it
is difficult to see that it has not become part of the  "law
of  the land" and does not inhere in our system of  law.  If
that is so, then "procedure established by law" must include
this  principle,  whatever else it may or may  not  include.
That  the word "law" used in article 21 does not  mean  only
State-made  law is clear from the fact that though there  is
no statute laying down the complete procedure to be  adopted
in contempt of Court cases, when the contempt is not  within
the view of the Court, yet such procedure as now prevails in
these  cases  is  part of our law.   The  statute-law  which
regulates the procedure of trials and enquiries in  criminal
cases does not specifically provide for arguments in certain
cases,  but it has always been held that no decision  should
be  pronounced  without hearing arguments.  In a  number  of
cases, it has been held that though there may be no specific
provision  for notice in the statute, the provision must  be
read  into  the law. I am aware that some  Judges  have  ex-
pressed  a strong dislike for the expression  "natural  jus-
tice"  on the ground that it is too vague and  elastic,  but
where  there  are well-known principles  with  no  vagueness
about  them,  which all systems of law  have  respected  and
recognized, they cannot be discarded merely because they are
in  the ultimate analysis found to be based on natural  jus-
tice.  That the expression "natural justice" is not  unknown
to our law is apparent from the fact that the Privy  Council
has  in  many criminal appeals from this country  laid  down
that  it shall exercise its power of interference  with  the
course  of criminal justice in this country when  there  has
been a breach of principles of natural justice or  departure
from the requirements of justice. [See In re Abraham Mallory
Dillet (1), Taba Singh v. King Emperor C), George Gfeller v.
The
(1) 12 A.C. 459.                 (2) I.L.R. 48 Born. 515.
169
King(1), and Bugga and others v. Emperor(2).  In the present
case, there is no vagueness about the right claimed which is
the right to have one's guilt or innocence considered by  an
impartial body and that right must be read into the words of
article 21.  Article 21 purports to protect life and person-
al  liberty, and it would be a precarious protection  and  a
protection not worth having, if the elementary principle  of
law  under discussion which, according to Halsbury is  on  a
par with fundamental rights, is to be ignored and  excluded.
In the course of his arguments, the learned counsel for  the
petitioner  repeatedly asked whether the Constitution  would
permit  a  law being enacted, abolishing the mode  of  trial
permitted by the existing law and establishing the procedure
of trial by battle or trial by ordeal which was in vogue  in
olden  times  in England. The question  envisages  something
which  is  not likely to happen, but it does raise  a  legal
problem  which can perhaps be met only in tiffs way that  if
the  expression "procedure established by law" simply  means
any  procedure established or enacted by statute it will  be
difficult to give a negative answer to the question, but  ii
the  word "law" includes what I have endeavoured to show  it
does,  such an answer may be justified. It seems to me  that
there  is  nothing revolutionary in the  doctrine  that  the
words  "procedure established by law" must include the  four
principles  set out in Professor Willis' book, which,  as  I
have  already  stated,  are different aspects  of  the  same
principle  and which have no vagueness or uncertainty  about
them. These principles, as the learned author points out and
as the authorities show, are not absolutely rigid principles
but  are adaptable to the circumstances of each case  within
certain  limits.  I have only to add that it  has  not  been
seriously  controverted  that "law" in  this  article  means
valid  law and "procedure" means certain definite  rules  of
proceeding  and not something which is a mere  pretence  for
procedure.
    I will now proceed to examine article 22 of the  Consti-
tution which specifically deals with the subject
(1) A.I.R. 1943P.C. 211.        (2) A.I.R. 1919P. C. 108.
170
of  preventive  detention.  The first point to be  noted  in
regard  to  this  article is that it does  not  exclude  the
operation of articles 19 and 21, and it must be read subject
to those two articles, in the same way as articles 19 and 21
must be read subject to article 22. The correct position  is
that article 22 must prevail in so far as there are specific
provisions  therein  regarding  preventive  detention,  but,
where  there  are no such provisions in  that  article,  the
operation of articles 19 and 21 cannot be excluded. The mere
fact  that  different aspects of the same  right  have  been
dealt  with in three different articles will not  make  them
mutually exclusive except to the extent I have indicated.
    I will now proceed to analyse the article and deal  with
its main provisions.  In my opinion, the main provisions  of
this  article  are  :--(1) that no person  can  be  detained
beyond three months without the report of an advisory  board
[clause  4 (a) ]; (2) that the Parliament may prescribe  the
circumstances  and the class or classes of cases in which  a
person  may be detained for more than three  months  without
obtaining  the opinion of an advisory board [clause 7  (a)];
(3) that when a person is preventively detained, the author-
ity making the order of detention shall communicate to  such
person  the  grounds on which the order is  made  and  shall
afford him the earliest opportunity of making a  representa-
tion  against  the  order [clause (5) ]; and  (4)  that  the
Parliament  may prescribe the maximum period for  which  any
person  may  in any class or classes of  cases  be  detained
under  any law providing for preventive detention [clause  7
(b) ].  The last point does not require any consideration in
this case, but the first three points do require  considera-
tion.
    In connection with the first point, the question  arises
as to the exact meaning of the words "such detention" occur-
ring in the end of clause 4 (a).  Two alternative  interpre-
tations were put forward: (1) "such detention" means preven-
tive  detention; (2) "such detention" means detention for  a
period  longer than three months.  If the first  interpreta-
tion  is  correct, then the function of the  advisory  board
would  be to go into the merits of the case of  each  person
and simply
171
report whether there was sufficient cause for his detention.
According  to the other interpretation, the function of  the
advisory  board will be to report to the government  whether
there is sufficient cause for the person being detained  for
more than three months. On the whole, I am inclined to agree
with the second interpretation.  Prima facie, it is a  seri-
ous  matter to detain a person for a long period (more  than
three months) without any enquiry or trial.  But article  22
(4)  (a) provides that such detention may be ordered on  the
report  of  the advisory board.  Since the  report  must  be
directly connected with the object for which it is required,
the  safeguard provided by the article, viz., calling for  a
report  from  the advisory board, loses its  value,  if  the
advisory  board is not to apply its mind to the vital  ques-
tion before the government, namely, whether prolonged deten-
tion (detention for more than three' months) is justified or
not.   Under article 22 (4) (a), the advisory board  has  to
submit its report before the expiry of three months and  may
therefore do so on the eighty-ninth day.  It would be  some-
what farcical to provide, that after a man has been detained
for
eighty-nine days, an advisory board is to say whether '  his
initial  detention  was justified.  On the other  hand,  the
determination  of the question whether  prolonged  detention
(detention  for  more than three  months)is  justified  must
necessarily involve the determination of the question wheth-
er the detention was justified at all, and such an interpre-
tation  only can give real meaning and effectiveness to  the
provision. The provision being in the nature of a protection
or safeguard, I must naturally lean towards the  interpreta-
tion which is favourable to the subject and which is also in
accord with the object in view.
    The  next question which we have to discuss  relates  to
the  meaning  and scope of article 22 (7)(a) which  runs  as
follows:-
    "Parliament may by law prescribe---
(a) the circumstances under which, and the class or  classes
of  cases  in which, a person may be detained for  a  period
longer than three months under any law providing for preven-
tive detention without obtaining
172
the  opinion  of an Advisory Board in  accordance  with  the
provisions of sub-clause (a) of clause (4)."
The  question is what is meant by  "circumstances"'  and
"class  or  classes of cases" used in this  provision.  This
question  has arisen because of the way in which  these  ex-
pressions appear to have been interpreted and applied in the
Act  of  Parliament  with which we are  concerned.   As  the
matter is important and somewhat complicated, I shall try to
express  my meaning as clearly as possible even at the  risk
of  some  repetition, and, in doing so, I  must  necessarily
refer to the impugned Act as well as Lists I and III of  the
Seventh Schedule of the Constitution, under which Parliament
had  jurisdiction  to  enact it.  Item 9  of  List  I--Union
List--shows  that the Parliament has power to  legislate  on
preventive detention for reasons connected with (1) defence,
(2)  foreign  affairs, and (3) security of   India..   Under
List   III--Concurrent List--the appropriate item is item  3
which shows that law as to preventive detention can be  made
for  reasons connected with (1) the security of the   State,
(2) the maintenance of public order, and (3) the maintenance
of  supplies and services  essential to the community.   The
impugned Act refers to all the subjects mentioned in Lists I
and III in regard to which law of preventive  detention  can
be made. Section 3 (1)of the Act, the substance of which has
already been mentioned, is important, and I shall  reproduce
it verbatim.
    "The Central Government or the State Government may-
(a) if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial
to-
      (i) the defence of India, the relations of India  with
foreign powers, or the security of India, or
    (ii)  the  security of the State or the  maintenance  of
public order, or
     (iii)  the maintenance of supplies and services  essen-
tial to the community, or
173
    (b)  if  satisfied with respect to any person who  is  a
foreigner  within the meaning of the Foreigners  Act,   1946
(XXXI of 1946), that with a view to regulating his continued
presence in India or with a view to making arrangements  for
his expulsion from India,
    it  is necessary so to do, make an order directing  that
such person be detained."
    It will be noticed that all the subjects of  legislation
concerning preventive detention occurring in item    of List
I are grouped in sub-clause (1) of clause (a). The  subjects
in  this group are three in number and, for  convenience  of
reference,  I shall hereafter refer to them as A, B  and  C.
In  sub-.clause  (ii), we find grouped two  of  the  matters
referred  to in item 3 of List III, these being security  of
the  State and the maintenance of public order.   These  two
subjects, I shall refer to as D and E. In sub-clause  (iii),
reference  has  been made to the third matter in item  3  of
List III, and I shall refer to this subject as F.  With this
classification, let us now turn to the Constitution itself.
    On reading articles 22 (4) and 22 (7) together, it would
be clear that so long as article 22 (4) (a) holds the  field
and Parliament does not act under clause (7) (a) of  article
22, there must be an advisory board in every case, i.e.,  if
the  legislation relates to groups A to F, as it does  here,
there must be an advisory board for all these groups.
    Article  22 (7) however practically engrafts  an  excep-
tion.  It states in substance that the Parliament may by  an
Act  provide  for preventive detention for more  than  three
months  without reference to an advisory board, but in  such
cases  it shall be incumbent on the Parliament to  prescribe
(1) the circumstances and (2) the class or classes of  cases
in  which such course is found to be necessary. If the  case
contemplated  in clause (4)(a)is the rule and  that  contem-
plated 'in clause (7) (a) is the exception, then the circum-
stances  and  the  class or classes of cases must  be  of  a
special or extraordinary nature, so as to take the case  out
of the rule and bring it within the exception.  It is always
174
possible to draw the line between the normal or ordinary and
the  abnormal or  extraordinary cases. and this is what,  in
my opinion, the Parliament was  expected to do under  clause
(7)  (a).   I do not think that it was  ever  intended  that
Parliament could at its will treat the normal as the  abnor-
mal  or 'the rule as the exception.  But this  is  precisely
what  has  been done in this case-  All the items  on  which
preventive legislation is possible excepting one, i.e., A to
E,  have  been put within the exception, and  only  one,  F,
which relates to maintenance of supplies and services essen-
tial to the community, has been allowed to remain under  the
rule. In other words, it is provided that there shall be  an
advisory board only for the last category, F, but no  provi-
sion  having been made for the other categories, A to E,  it
may  be assumed that the advisory board has  been  dispensed
with in those cases. The learned Attorney-General maintained
that  it would have been open to the Parliament to  dispense
with the advisory board even for the category F, and if such
a  course  had been adopted it would not have  affected  the
validity of the Act.  This is undoubtedly a logical position
in  the sense that it was necessary for him to go as far  as
this  to justify his stand; but, in my opinion,  the  course
adopted  by  the Parliament in enacting section  12  of  the
impugned  Act is not what  is  contemplated  under   article
22 (7)  (a) or is permitted by it.  The  circumstances to be
prescribed  must be special and extraordinary  circumstances
and  the class or classes of cases must be of the  same  na-
ture.   In my opinion, the Constitution  never  contemplated
that  the  Parliament should mechanically reproduce  all  or
most of the categories A to F almost verbatim and not  apply
its  mind to decide in what circumstances and in what  class
or classes of cases the safeguard of an advisory board is to
be dispensed with.
    I  may state here that two views are put forward  before
us as to how clauses (4) (a) and 7 (a) of article 22 are  to
be read:--(1) that clause (4) (a) lays down the rule that in
all  cases  where detention for more than  three  months  is
ordered,  it should be done in consultation with and on  the
report of the advisory
175
board,  and  clause (7) (a) lays down an exception  to  this
rule by providing that Parliament may pass an Act permitting
detention  for more than three months without reference   to
an advisory board;  (2) that clauses (4)(a) and (7) (a)  are
independent  clauses  making two  separate  and  alternative
provisions  regarding detention for more than three  months,
in one case on the report of an advisory board and in  other
case  without reference to an advisory board.    Looking  at
the substance and not merely at the words,  I am inclined to
hold  that clause (7) (a) practically engrafts an  exception
on  the rule that preventive detention for more  than  three
months  can  be ordered only on the report  of  an  advisory
board,   and so far  I have proceeded on that footing.   But
it seems to me that it will make no difference to the  ulti-
mate  conclusion, whichever of the two views we  may  adopt.
Even on the latter view, it must be recognized that the  law
which the Constitution  enables the Parliament to make under
article  22 (7) (a) would be an exceptionally  drastic  law,
and, on the principle that an exceptionally drastic law must
be intended for an exceptional situation, every word of what
I  have said so far must stand.  Clause (7) (a) is  only  an
enabling  provision, and it takes care to provide  that  the
Parliament  cannot  go to the extreme limit to which  it  is
permitted  to  go without prescribing the class  or  classes
cases  and the circumstances to which the extreme law  would
be applicable. It follows that the class or classes of cases
and the circumstances must be of a special nature to require
such legislation.
    It  was urged that the word "and" which  occurs  between
"circumstances" and "class or classes of cases" is used in a
disjunctive sense and should be read as "or," and by way  of
illustration  it was mentioned that when it is said  that  a
person may do this and that, it means that he is at  liberty
to  do either this or that.  I do not think that this  argu-
ment is sound.  I think that clause (7)(a) can be accurately
paraphrased somewhat as follows :--" Parliament may dispense
with an advisory board, but in that case it shall  prescribe
the circumstances and the class or
23
176
classes of cases  ........  "If this is the meaning, then  '
'and" must be read as "and" and not as "or";  and "may" must
be  read as "shall."  Supposing it was said that  Parliament
may  prescribe the time and place for the doing of a  thing,
then can it be suggested that both time and place should not
be  prescribed  ? It seems obvious to me that the  class  or
classes of cases must have some reference to the persons  to
be detained or to their activities and movements or to both.
"Circumstances" on the other hand refer to something  extra-
neous,  such as surroundings, background, prevailing  condi-
tions,  etc.,  which might prove a fertile  field   for  the
dangerous  activities of dangerous persons.   Therefore  the
provision clearly means that both the circumstances and  the
class  or classes of cases (which are two different  expres-
sions with different meanings and connotations and cannot be
regarded as synonymous) should be prescribed, and  prescrip-
tion  of  one  without prescribing the  other  will  not  be
enough.  As I have already stated, such law as can be enact-
ed  under article 22 (7) (a) must involve, by reason of  the
extreme  limit to which it can go, serious  consequences  to
the persons detained.  It will mean (1) prolonged detention,
i.e.,  detention for a period longer than three months,  and
(2) deprivation of the safeguard of an advisory board. Hence
article 22 (7) (a) which purports to be a protective  provi-
sion  will  cease to serve its object unless it is  given  a
reasonable interpretation. To my mind, what it  contemplates
is that the law in question must not be too general but  its
scope  should  be limited by prescribing both the  class  or
classes of cases and the circumstances.
    It  was contended that the expression "class or  classes
of  cases" is wide enough to enable the Parliament to  treat
any of the categories mentioned in Lists I and III, items  9
and 3 respectively, (i.e., any of the categories A to F)  as
constituting a class.  At first sight, it seemed to me to be
a  plausible  argument,, but the more I think about  it  the
more unsound it appears to me.  The chief thing to be remem-
bered  is  what I have already emphasized  more  than  once,
viz., that a special or extreme type of law must be  limited
to special classes of cases and circumstances.  Under the
177
Constitution, the Parliament has to prescribe "the class  or
classes,"  acting within the limits of the power granted  to
it under Lists I and III.  The class or classes must be  its
own  prescription and must be so conceived as to justify  by
their contents the removal of an important safeguard provid-
ed  by  the Constitution. Prescribing is more  than  a  mere
mechanical  process. It involves a mental effort  to  select
and  adapt the thing prescribed to the object for  which  it
has  to  be  prescribed.  We find here that what  is  to  be
prescribed  is "class or classes" (and  also  "circumstances
").  We  also find that what the law intends to  provide  is
prolonged  detention (by which words I shall hereafter  mean
detention for more than three months) and elimination of the
advisory board.  The class or classes to be prescribed  must
therefore have a direct bearing on these matters and must be
so  selected and stated that any one by looking at them  may
say  :--"  That  is the reason why the  law  has  prescribed
prolonged detention without reference to an advisory board."
In other words, there must be something to make the class or
classes  prescribed fit in with an extreme type of  legisla-
tion--some  element of exceptional gravity or menace,  which
cannot  be  easily and immediately  overcome  and  therefore
necessitates  prolonged detention; and there must  be  some-
thing  to show that reference to an advisory board would  be