dedol-hf/india-case-legal-rag huggingface dataset:
and  (b) of clause (7).  According to the majority  view  in
Gopalan's  case, sub-clause (a) of clause (7)being  an  ena-
bling  provision, the word "and" should be understood  in  a
disjunctive  sense. The combined effect of sections  9(2)(a)
and 12(1) is to provide, in a certain class of cases,  name-
ly, where detention orders were in force at the commencement
of the new Act, that the persons concerned could be detained
for  a period longer than three months if an Advisory  Board
reports  that  there are sufficient  grounds  for  detention
within ten weeks from the commencement of the new Act,  that
is  to  say, without obtaining the opinion  of  an  Advisory
Board  before  the expiration of the three months  from  the
commencement of the detention as provided in sub-clause  (a)
of  clause  (4).   And, although 'the new Act  does  not  in
express terms prescribe in a separate provision any  maximum
period  as  such for which any person may in  any  class  or
classes  of  cases be detained, it fixes, by  extending  the
duration  of the old Act till the 1st April, 1952, an  over-
all  time limit beyond which preventive detention under  the
Act  cannot be continued.  The general rule in regard  to  a
temporary statute is that, in the absence of special  provi-
sion  to  the contrary, proceedings which  are  being  taken
against  a person under it will ipsofacto terminate as  soon
as the statute expires (Craies on Statutes, 4th Edition,  p.
347).   Preventive  detention which would, but for  the  Act
authorising it, be a continuing wrong, cannot, therefore, be
continued beyond the expiry of the Act itself.  The new  Act
thus  in substance prescribes a maximum period of  detention
under it by providing that it shall cease to have effect  on
a  specified date. It seems to me, therefore,  that  section
9(2)(a)  and  section  12(1) of the  new  Act  substantially
satisfy the requirements of sub clause (b) of clause (4)  of
article  22,  and cannot be  declared  unconstitutional  and
void.
   629
    The  objection to the validity of section 11(1)  can  be
disposed of in a few words. The argument is that the discre-
tionary power given to the appropriate Government under that
sub-section to continue the detention "for such period as it
thinks  fit" authorises preventive detention for an  indefi-
nite period, which is contrary to the provisions of  article
22(4).   But, if, as already observed, the new Act is to  be
in force only up to I st April, 1952, and no detention under
the  Act  can continue thereafter, the  discretionary  power
could be exercised only subject to that over-all limit.  The
objection therefore fails.
In the result the petitions are dismissed.
    MAHAJAN  J.--The question to be decided in  these  peti-
tions  is whether the Preventive Detention (Amendment)  Act,
1951,  or any part thereof is invalid and whether the  peti-
tioners who have been detained are entitled to a writ in the
nature  of habeas corpus on the ground that their  detention
is illegal.
    The Act was enacted by Parliament on the 27th  February,
1951, and according to its express terms will cease to  have
effect  on the 1st April, 1952, save as regards things  done
or omitted to be done before that date.
    The  point  that has been canvassed before  us  is  that
sections  9  (2)(a) and 12 of the Act are invalid  as  these
infringe the fundamental rights conferred under articles  21
and 22 of Part III of the Constitution. Section 9 of the Act
as amended reads as follows :--
    "(1) In every case where a detention order has been made
under this Act, the appropriate Government shall, within six
weeks from the date specified in subsection (2) place before
an  advisory  board constituted by it under  section  8  the
grounds on which the order has been made and the representa-
tion, if any, made by the person affected by the order,  and
in  case where the order has been made by an  officer,  also
the  report  made by such officer under sub-section  (a)  of
section 3.
81
630
   (2) The date referred to in sub-section(1) shallbe--
     (a)  in  every case where at the  commencement  of  the
Preventive Detention (Amendment) Act, 1951, a person      is
under detention in pursuance of a detention order made under
sub-clause  (i) or (ii) of clause (a) of sub-section (1)  of
section 3, the date of commencement of the said Act; and
   (b)  in  every  other  case the  date  of  the  detention
order.''
Section 12 is in these terms :--
"For the avoidance of doubt it is hereby declared--
   (a) every detention order in force at the commencement of
the  Preventive Detention (Amendment) Act, 1951, shall  con-
tinue in force and shall have effect as if it had been  made
under  this  Act  as amended  by  the  Preventive  Detention
(Amendment) Act, 1951; and
    (b)  nothing contained in sub-section (a) of section  1,
or  sub-section (1) of section 12 of this Act as  originally
enacted  shall be deemed to affect the validity or  duration
of any such order."
    Mr.  Nambiar  for the detenus challenged  the  vires  of
these sections on the following grounds: (1) That article 22
(4)  of  the Constitution limits the  legislative  power  of
Parliament  and State legislatures in respect of  preventive
detention  laws in the matter of duration of the  period  of
detention  and provides that no law of preventive  detention
can authorise the detention of a person for a longer  period
than  three months without the intervention of  an  advisory
board and without obtaining its opinion within three months.
The  amending Act, 1951, by section 9  authorizes  detention
for a period longer than three months without the opinion of
the  advisory  board having been obtained  within  the  said
period of three months from the date of the actual detention
in  respect of persons detained under Act IV of 1950  as  it
originally stood and it thus infringes the fundamental right
conferred by article 22(4).  (2) That Parliament in exercise
of  powers conferred on it under article 22(7)  having  pre-
scribed in section 12 of Act IV
    631
of  1950 a maximum period of one year for detention in  cer-
tain  classes of cases without obtaining the opinion of  the
advisory board, that period of one year became a part of the
content  of  the fundamental right conferred  under  article
22(4) of the Constitution. Sections 9 and 12 of the  amended
Act  contravene  this  fundamental right  inasmuch  as  they
authorize  detention  of  persons who  were  detained  under
orders passed under section 3 (1) (i) and (ii) of Act IV  of
1950  beyond the period of one year prescribed therein,  and
are therefore void. (3) That Parliament has no authority  to
alter  the period of one year prescribed by it by virtue  of
authority given to it under article 22(7) (b) of the Consti-
tution  so as to affect the eases of persons detained  under
Act IV of 1950.  (4) That the Constitution does not envisage
detention for an indefinite period and that inasmuch as  the
amended  Act has failed to provide a maximum period for  the
detention  of a person, it is repugnant to the  Constitution
and  is  void; that it was obligatory  on  Parliament  while
making the law providing for preventive detention to fix the
maximum period for such detention.  (5) That the  provisions
of  these sections infringe article 21 of  the  Constitution
inasmuch  as they authorize detention contrary to  procedure
established by law (Act IV of 1950) in respect of detentions
under  that Act, because under established procedure  deten-
tion beyond a period of one year was void.  For the ,reasons
given  above  it was contended that as in the  case  of  the
petitioners the maximum period of one year under section  12
of  Act IV of 1950 had expired on 27th February, 1951,  they
were entitled to their release.
    For  a  proper appreciation of the points urged  by  the
learned  counsel and the manner in which they were  combated
by the learned Attorney-General, it is necessary to  shortly
state  the nature of the relevant amendments  introduced  by
the-amending  Act  in the Preventive Detention  Act,  IV  of
1950.   In section 8 of Act IV of 1950, which  concerns  the
constitution  of advisory boards, the new Act  has  provided
that the board shall consist of three persons instead of two
except in cases
632
where  before the commencement of the amended Act  reference
had already been made to an advisory board. Section 9 of Act
IV of 1950 has been substituted by section 9 of the amending
Act  and it gives the benefit of the advisory board  to  all
classes and cases of persons, who under Act IV of 1950  were
not  entitled  to that benefit. It makes  it  obligatory  on
government  to place all these cases, like all other  cases,
within six weeks from a prescribed date  before an  advisory
board.  In section 10 the amended Act makes it obligatory on
the  advisory board to submit its report to  the  government
within  ten weeks of the date specified under section 9  and
it  also  authorizes  the advisory board to  call  for  such
information  as it deems necessary from government and  from
the person concerned and it empowers it to give a hearing to
the  detenuif in any particular case it considers it  essen-
tial.  Section  11 makes the opinion of the  advisory  board
binding  on  government. It also  authorizes  government  to
continue  the  detention of persons for such  period  as  it
thinks  fit  in cases where the opinion of the board  is  in
favour of the continuance of detention. Section 12  provides
that orders of detention in force at the commencement of the
amended Act will be deemed to have been made under this Act.
A new section, 14, has been introduced in Act IV of 1950 and
it authorizes temporary release of persons detained.
    The  provisions  of  the amended Act are  thus  a  great
improvement  on the original Act inasmuch as they provide  a
greater  opportunity to the detenus of proving  their  inno-
cence than they had under the original Act. The detention of
a  person without the case being referred to the opinion  of
an  advisory  board constituted of independent  persons  has
been completely done away with, except for a period of three
months  provided for in article 22(4) of  the  Constitution.
What  the amended Act has in substance done is that  instead
of the cases of persons preventively detained being  consid-
ered by ordinary courts of law, a special tribunal designat-
ed as an advisory board and consisting of men of high  judi-
cial experience has been given authority
633
to  examine their cases within a prescribed period  and  the
decision of that authority has been made binding on  govern-
ment.  This tribunal is obviously no substitute for a  court
of  law  but  a provision like this is in the  nature  of  a
substantial solatium in cases of preventive detention where-
in ordinarily the detaining authority is the judging author-
ity as well.
Shortly stated, Mr. Nambiar's attack on these beneficial
provisions  and concerning their vires is based  principally
on  the  method  adopted by the draftsmen  of  the  Act  for
switching  over  the detentions which were  being  continued
under  section 12 of Act IV of 1950 and which were valid  by
virtue of the constitutional provisions contained in article
22(4)  (b) of the Constitution to the constitutional  provi-
sions contained in article 22(4)(a)so that they may be given
the  benefit of an advisory board's opinion.  His  grievance
is  that  in doing so the amended statute has  enlarged  the
period  of three months provided under article 22(4)  for  a
report of the advisory board and has extended the period  of
one  year  mentioned in section 12 of Act IV of  1950.  This
argument  is based on the assumption that the period of  one
year  mentioned in section 12 of Act IV of 1950 was  an  im-
mutable  and unalterable one and that Parliament  could  not
amend  section 12 of the Act in any manner  whatsoever  once
having enacted it. I am unable to accept this contention. It
seems to me, that it was open to Parliament to amend section
12 and substitute another maximum for the period of one year
mentioned  therein.   If  Parliament had  recourse  to  that
alternative, then in my opinion, the petitioners could  have
no possible grievance as regards the vires of the new legis-
lation. As regards the period of three months, it was essen-
tial  to  fix  some date from which that period  had  to  be
calculated  in respect of cases which were  previously  gov-
erned  by section 12 of Act IV of 1950. Under  that  section
they did not have the benefit of the advisory board and when
the new law gave them that benefit, a terminus quo had to be
fixed for the period of three months during which the  advi-
sory board had to submit its report. The amended Act
634
achieved  this by prescribing in these specified classes  of
cases the date of the commencement of the amended Act as the
date  from which this period was to begin and by section  12
it  provided that all detentions continuing at the  date  of
the  commencement of the amended Act shall be deemed  to  be
detentions under the amended Act.
    After  a  careful consideration of the argument  of  Mr.
Nambiar I have reached the conclusion that there is  consid-
erable  force in the reply made to it by the learned  Attor-
ney-General.  He contended that article 22(4) provides  that
no  law providing for preventive detention  shall  authorize
detention of a person for a longer period than three  months
and  that  the amended Act has not in any  manner  infringed
this  provision;  on the other hand, it  provides  that  the
advisory board must make its report to the government within
ten weeks. It was urged that in order to judge the vires  of
the amended Act it was not relevant to take into  considera-
tion detention of persons validly detained under     differ-
ent  statute and that its vires must be adjudged on its  own
provisions  and  not  with reference to  what  has  actually
happened under another law. It was frankly conceded that  if
Parliament  or a State legislature passed legislation  in  a
manner  which amounted to a fraud on the Constitution  inas-
much  as  those enactments were passed with the  purpose  of
defeating  the  constitutional provisions, then  those  laws
could  be attacked on that ground but not on the  ground  of
their  vires, that in the present case no such argument  had
been taken or could be taken and that being so, the  conten-
tion of Mr. Nambiar was not justified.
    In my opinion, the statute as framed does not in any way
contravene or abridge either the provisions of article 21 or
of  article 22.  It was open to Parliament, as  already  ob-
served,  to alter the maximum period of detention  mentioned
in  section 12 of Act IV of 1950 and to enhance it.  It  was
also  open to government to release these detenus after  the
expiry of one year and to serve fresh orders of detention on
them after their release under the amended Act.  If that
    635
had been done, no question could possibly be raised that the
period of three months provided for in article 22(4) of  the
Constitution had in any way been affected. Instead of  going
through  that form of ceremony, Parliament by section 12  of
the amended Act provided that all detention orders in  force
under  Act IV of 1950 be treated as detention  orders  under
the amended Act. By the effect of this section the detention
of all such persons becomes a fresh detention under the  new
law, with the result that nothing in the amended statute can
be said to abridge the fundamental right conferred by  arti-
cle  22(4)  of  the Constitution.  It was  argued  that  the
amended statute is not a new and an independent statute  and
that in spite of the amendments it remains the same  statute
as  was passed in 1950, and that the detention of the  peti-
tioners is under the same law of preventive detention and it
therefore offends against article 22(4) of the  Constitution
and  that it virtually amounts to tacking of the  period  of
detention  under  one Act to the period of  detention  under
another Act and as such amounts indirectly and substantially
to an infringement of the fundamental right.  In my opinion,
this contention, though attractive, is without force.  Tech-
nically speaking, an amended statute remains the same  stat-
ute as originally enacted but from that proposition it  does
not follow that the law contained in the amended statute  is
the same law as was contained in the original one. Section 9
of the original Act has been substituted by section 9 of the
amended Act and declares a new law and it is not a re-enact-
ment  of  the law as was contained in the  earlier  statute.
Section  12  of  the original statute  has  been  completely
repealed  and  no longer exists.  The law declared  by  that
section  has been abrogated. The law declared by section  12
of the amended Act is in the nature of a substituted  provi-
sion.   It seems to me that the law declared by the  amended
statute is not the same law as was declared by the  original
statute  and  to that extent the amended statute is  in  the
nature  of a new and independent statute.   The  petitioners
are being detained today by
636
force  of the provisions contained in sections 9 and  12  of
the  amended  Act and not under the law that was  passed  in
1950, as by repeal of section 12 of that Act their detention
under  it  technically terminated.  The new  law  admittedly
standing  by  itself  does not authorize  detention  of  any
person beyond a period of three months except in the  manner
provided  by article 22(4) of the Constitution. No  question
whatever arises of tacking of the period of detention  under
one law to the period of detention under another law,  inas-
much  as the detention under the earlier  law  automatically
terminates with the repeal of section 12 of Act IV of  1950.
For  the  reasons given above, the first contention  of  Mr.
Nambiar fails.
    In  view  of  the above decision it  is  unnecessary  to
consider the alternative  argument of the learned  Attorney-
General to the effect that in case it is held that section 9
contravenes  article 22(4) (a) of the Constitution, it is  a
valid  law under article 22(4) (b) of the  Constitution  and
hence  the order of detention is legal.  Mr. Nambiar's  con-
tention  to the effect that in case the petitioners'  deten-
tion is regarded as a fresh detention under the amended Act,
then  it  is necessary to serve them with fresh  grounds  of
detention  does  not appear to me to be  well  founded.  The
point  was not raised in the petitions and no  argument  was
addressed to us that any right under article 22(5) had  been
infringed.   Moreover,  as at present advised, I  think  the
contention  has  not  got much force because  of  the  clear
provisions  of  section 12 of the amended Act  which  treats
every  detention order having force at the  commencement  of
the  amended Act as being deemed to continue under it.  When
detention  is  not on any fresh grounds but on  grounds  al-
ready.  served,  any default in observing the  formality  of
again  serving  those very grounds on the detenu  cannot  be
said  to be an infringement of the fundamental  right  under
article 22(5) of the Constitution.
    The  next  contention  of Mr.  Nambiar  that  Parliament
having  fixed the maximum period of detention in section  12
of Act IV of 1950 under its powers contained
637
in  article 22 (7) of the Constitution, that maximum  became
apart of the content of fundamental right and sections 9 and
12  of  the amended Act contravene  this  fundamental  right
inasmuch as these authorize detention of the petitioners for
a period beyond one year again, in my opinion, is not sound.
In other words, the argument of the learned counsel  amounts
to this  that as soon as Parliament by law under article  22
(7) prescribed a maximum period for which any person may  be
detained  under any law providing for preventive  detention,
then  that period becomes a part of the  fundamental   right
conferred   on a person under Part III of the  Constitution.
The  only  method of adding to or  subtracting  'from  those
rights is by an amendment of the Constitution in the  manner
provided therein. By clause (7) of article 22 Parliament has
not  been authorized to add to the fundamental rights.   The
contention  of the learned counsel is based on an  erroneous
assumption that article 22 in clause (7) confers a fundamen-
tal right on a person; in its true concept it restricts to a
certain  degree  the measure of the fundamental  right  con-
tained in clause 4 (a) of the article.
    The  argument that Parliament has no authority to  alter
the period of one year prescribed by it under article 22 (7)
(b)  of  the Constitution is again founded on  an  erroneous
assumption  that  the clause confers  legislative  power  on
Parliament.  The ambit of the legislative powers of  Parlia-
ment  is contained in article 245 of the  Constitution  read
with the entries in the Seventh Schedule. Article 22 of  the
Constitution restricts those powers to a certain extent.  It
does not enlarge them. Clause (7), however, cuts down  these
restrictions  to a certain extent.  Parliament having  power
to make the law has also the power to alter or amend it,  if
it so chooses.  It is difficult to assent to the proposition
of the learned counsel that if a person is detained  accord-
ing to a law that existed at the time of his detention, then
in regard to him it is that and that law alone which matters
and any change in the
82
638
law, even if it has retrospective effect, cannot affect  him
in any manner whatever.
    The next point canvassed before us was that the  Consti-
tution does not envisage detention for an indefinite  period
and that it is obligatory on Parliament to provide a maximum
period  for detention of a person under a law of  preventive
detention. In my opinion, this argument again is not  sound.
Emphasis was laid on the proviso to article 22 (4) (a) which
enacts  that nothing in the sub-clause shall  authorize  the
detention of any person beyond the maximum period prescribed
by any law made by Parliament under sub-clause (b) of clause
(7), and it was urged that the word "may" in article 22  (7)
must be read in the sense of "must" and as having a  compul-
sory  force inasmuch as the enactment authorizes  Parliament
to prescribe by law a maximum period for detention, for  the
advancement  of  justice  and for public good,  or  for  the
benefit of persons subjected to preventive detention. Refer-
ence  was  made to Maxwell on "Interpretation  of  Statutes"
(9th Edn., page 246) and to the well-known case of Julius v.
Bishop  of Oxford(1). Lord Cairns in that case  observed  as
follows :--
    ``Where  a power is deposited with a public officer  for
the  purpose of being used for the benefit of  persons  that
power ought to be exercised.''
    In  my  opinion, clause (7) of'article  22,  as  already
pointed  out,  in its true concept to a certain  degree  re-
stricts  the measure of the fundamental right  contained  in
clause  (4) (a) and in this context the rule referred to  by
Maxwell has no application whatever. Moreover, the provision
in the Constitution is merely an enabling one and it is well
settled that in an enabling Act words of a permissive nature
cannot be given a compulsory meaning. (Vide Craies on  Stat-
ute Law, p. 25,4). Be that as it may, the point is no longer
open  as it has been concluded by the majority  decision  in
Gopalan's  case(2). The learned Chief Justice at p.  119  of
the report observed as follows :--
(1) 5 App. Cas. 214.        (2) [1950] S.C.R. 88.
639
     "Sub-clause (b) is permissive. It is not obligatory  on
the  Parliament  to  prescribe any maximum  period.  It  was
argued  that  this gives the Parliament a right to  allow  a
person to be detained indefinitely.  If that construction is
correct,  it  springs  out of the words  of  sub-clause  (7)