dedol-hf/india-case-legal-rag huggingface dataset:
merely illusory and had no real meaning.
    Section  14 of Act IV of 1950 has been impugned  on  the
ground  that it contravenes and abridges the  provisions  of
articles 22 (5) and 32 of the Constitution.  This section is
in these terms:--
242
    "(1) No Court shall except for the purposes of a  prose-
cution for an offence punishable under subsection (2), allow
any  statement  to be made,  or any evidence  to  be  given,
before  it of the substance of any communication made  under
section 7 of the grounds on which a detention order has been
made against any person or of any representation made by him
against  such  order,  and notwithstanding   anything   con-
tained  in  any  other law, no Court shall  be  entitled  to
require  any  public officer to produce before  it,   or  to
disclose the substance of, any such communication or  repre-
sentation  made, or the proceedings of an advisory board  or
that part of the report of an advisory board which is confi-
dential.
(2) It shall be an offence punishable with  imprisonment
for  a term which may extend to one year, or with  fine,  or
with both, for any person to disclose or publish without the
previous  authorisation  of the Central  Government  or  the
State Government, as the case may be, any contents or matter
purporting  to  be  contents of any  such  communication  or
representation as is referred to in sub-section (1):
    Provided that nothing in this sub-section shall apply to
a  disclosure made to his legal adviser by a person  who  is
the subject of a detention order."
    This section is in the nature of an iron curtain  around
the  acts  of the authority making the order  of  preventive
detention.  The Constitution has guaranteed to the  detained
person  the right to be told the grounds of  detention.   He
has been given a right to make a representation [vide  arti-
cle 22 (5)], yet section 14 prohibits the disclosure of  the
grounds furnished to him or the contents of the  representa-
tion  made  by him in a Court of law and makes a  breach  of
this injunction punishable with imprisonment.
    Article 32 (1) of the Constitution is in these terms :--
    "The  right  to move the Supreme  Court  by  appropriate
proceedings  for the enforcement of the rights conferred  by
this Part is guaranteed."
243
Sub-section (4) says :--
    "The  right  guaranteed  by this article  shall  not  be
suspended except as otherwise provided for by this Constitu-
tion."
    Now  it  is quite clear that if an authority  passes  an
order of preventive detention for reasons not connected with
any of the six subjects mentioned in the 7th Schedule,  this
Court  can always declare the detention illegal and  release
the  detenu, but it is not possible for this Court to  func-
tion  if  there  is a  prohibition  against  disclosing  the
grounds  which have been served upon him. It is only  by  an
examination of the grounds that it is possible to say wheth-
er  the  grounds fall within the ambit  of  the  legislative
power  contained  in  the Constitution or  are  outside  its
scope. Again something may be served on the detenu  as being
grounds  which are not grounds at all.  In this  contingency
it  is the right of the detained person under article 32  to
move this Court for enforcing the right under article 22 (5)
that  he  be given the real grounds on which  the  detention
order is based.  This Court would be disabled from  exercis-
ing  its functions under article 32 and adjudicating on  the
point that the grounds given satisfy the requirements of the
sub-clause  if it is not open to it to see the grounds  that
have been furnished.  It is a guaranteed right of the person
detained to have the very grounds which are the basis of the
order of detention.  This Court would be entitled to examine
the matter and to see whether the grounds furnished are  the
grounds  on the basis of which he has been detained or  they
contain  some other vague or irrelevant material. The  whole
purpose of furnishing a detained person with the grounds  is
to  enable  him  to make  a  representation  refuting  these
grounds  and  of proving his innocence. In order  that  this
Court may be able to safeguard this fundamental right and to
grant him relief it is absolutely essential that the  detenu
is  not prohibited under penalty of punishment  to  disclose
the  grounds  to the Court and no injunction by law  can  be
issued to this Court disabling it from having a look at  the
grounds.  Section  14 creates a substantive offence  if  the
grounds  are disclosed and it also lays a duty on the  Court
not
244
to  permit  the disclosure of such  grounds.   It  virtually
amounts  to a suspension of a guaranteed right  provided  by
the  Constitution inasmuch as it indirectly by  a  stringent
provision  makes  administration of the law  by  this  Court
impossible  and  at  the same time it  deprives  a  detained
person  from obtaining justice from this Court. In my  opin-
ion,  therefore, this section when it prohibits the  disclo-
sure of the grounds contravenes or abridges the rights given
by  Part III to a citizen and is ultra vires the  powers  of
Parliament to that extent.
The result of the above discussion is that, in my  opin-
ion, sections 12 and 14 of Act IV of 1950 as above indicated
are  void  and the decision of the detenu's case has  to  be
made  by  keeping out of sight these two provisions  in  the
Act.  If  sections 12 and 14 are deleted from  the  impugned
legislation,  then the result is that the detention  of  the
petitioner  is not legal. The statute has not  provided  for
detention for a period of three months or less in such cases
as  it could have done under article22 (4) of the  Constitu-
tion  and that being so, the petitioner cannot be  justifia-
bly  detained  even for a period of three  months.  I  would
accordingly order his release.
In  view of the decision above arrived at I do not  con-
sider  it  necessary  to express any opinion  on  the  other
points  that were argued at great length before us,  namely,
(1)what  is  'the scope and true meaning of  the  expression
"procedure established by law" in article 21 of the  Consti-
tution, and (2) what is the precise scope of articles 19 (1)
(d) and 19 (5)of the Constitution.
MUKHERJEA J.--This is an application under article 32 of the
Constitution  praying for a writ of habeas corpus  upon  the
respondents with a view to release the petitioner who, it is
alleged,  is being unlawfully detained in the Central  Jail,
Cuddalore, within the State of Madras.
    The  petitioner, it is said, was initially  arrested  in
Malabar  on  17th  of December, 1947,  and  prosecution  was
started against him on various charges for having
245
delivered  certain  violent speeches. While  these  criminal
cases  were going on, he was served with an order of  deten-
tion  under  the Madras Maintenance of Public Order  Act  on
22nd  April, 1948.  This order of detention was held  to  be
illegal  by the Madras High Court, but on the same day  that
the judgment was pronounced, a second order of detention was
served  upon him.  On his moving the High Court again for  a
writ  of habeas corpus in respect to the  subsequent  order,
his  application was dismissed on the ground that as he  was
not  granted  bail in one of the three criminal  cases  that
were pending against him, the detention could not be said to
be  unlawful.  Liberty, however, was given to him  to  renew
his application if and when his detention under the criminal
proceedings ceased.  In two out of the three criminal  cases
the trial before the magistrate ended on February 23,  1949,
and  the petitioner was sentenced to  rigorous  imprisonment
for 6 months in each of the cases. These sentences, however,
were  set aside in appeal on 26th September, 1949.   As  re-
gards the third case, he was tried by the Sessions Judge  of
North  Malabar and sentenced to rigorous imprisonment for  5
years  but this sentence was reduced to 6 months'  imprison-
ment  by  the Madras High Court on appeal.   The  petitioner
made  a  fresh application to the High Court praying  for  a
writ  of habeas corpus in respect of his detention under the
Madras Maintenance of Public Order Act and this application,
which  was  heard after he had served out his  sentences  of
imprisonment  referred to above, was dismissed  in  January,
1950.  On 25th February, 1950, the Preventive Detention  Act
was passed by the Parliament and on the 1st of March follow-
ing,  the  the detention of the applicant under  the  Madras
Maintainance  of Public Order Act was cancelled and  he  was
served  with a fresh order of detention under section 3  (1)
of  the  Preventive Detention Act, 1950.  On behalf  of  the
respondents the  detention of the petitioner is sought to be
justified on the strength of the Preventive Detention Act of
1950.  The position taken up on behalf of the petitioner  on
the  other  hand is that the said Act is invalid  and  ultra
vires  the conStitution by reason of its being  in  conflict
with certain
246
fundamental rights which are guaranteed by the Constitution.
It is argued, therefore, that the detention    of the  peti-
tioner is invalid and that he should be set at liberty.
    The contentions that have been but forward-by Mr. Nambi-
ar  who appeared in support of the petition, may be  classi-
fied  under  four heads.   His first contention is  that  as
preventive detention is, in substance, a restriction on  the
free movements of a person throughout the Indian  territory,
it  comes within the purview of article 19 (1) (d)  of  Part
III  of  the Constitution which lays  down  the  fundamental
rights. Under clause    (5) of the article, any  restriction
imposed upon this right of free movement must be  reasonable
and  should  be prescribed in the interests of  the  general
public.  The question as to whether it is reasonable or  not
is  a  justiciable matter which is to be determined  by  the
Court.  This being the legal position, the  learned  Counsel
invites us to hold that the main provisions of the  impugned
Act,  particularly those which are contained in sections  3,
7, 10, 11, 12, 13 and 14 are wholly unreasonable and  should
be invalidated on that ground.
    The second contention advanced by the learned Counsel is
that the impugned legislation is in conflict with the provi-
sion  of article 21 of the Constitution inasmuch as it  pro-
vides  for deprivation of the personal liberty of a man  not
in  accordance with a procedure established by law.   It  is
argued  that the word 'law' here does not mean or  refer  to
any particular legislative enactment but it means the gener-
al  law of the land, embodying those principles  of  natural
justice'  with  regard to procedure which  are  regarded  as
fundamental, in all systems of civilised jurisprudence.
    It  is conceded by the learned counsel that  the  proce-
dure,  if  any, with regard to preventive detention  as  has
been  prescribed  by article 22 of  the  Constitution  which
itself  finds a place in the chapter on  Fundamental  Rights
must  override  those general rules of procedure  which  are
contemplated  by article 21 but with regard to  matters  for
which no provision is made in article 22, the general provi-
sion made in article 21
247
must  apply.   He has indicated in course of  his  arguments
what  the  essentials of such procedure are  and  the  other
point  specifically  raised in this connection is  that  the
provision  of section 12 of the Preventive Detention Act  is
in conflict with article 22 (7) of the Constitution.
    The last argument in support of this application is that
the provisions of sections 3 and 14 of the Preventive Deten-
tion Act are invalid as they take away and render completely
nugatory the fundamental right to constitutional remedies as
is provided for in article 32 of the Constitution.
    In discussing these points it should be well to keep  in
mind the general scheme of the Indian Constitution  relating
to the protection of the fundamental rights of the  citizens
and the limitations imposed in this respect upon the  legis-
lative powers of the Government.  The Constitution of  India
is a written Constitution and though  it has adopted many of
the  principles of the English Parliamentary system, it  has
not accepted the English doctrine of the absolute  supremacy
of Parliament in matters of legislation. In this respect  it
has  followed  the American Constitution and  other  systems
modelled on it.  Notwithstanding the representative  charac-
ter  of their political institutions,  the Americans  regard
the  limitations  imposed  by their  Constitution  upon  the
action of the Government, both legislative and executive, as
essential to the preservation of public and private  rights.
They  serve as a check upon what has been described  as  the
despotism  of the majority; and as was observed in the  case
of  Hurtado  v. The People of California (1)  "a  government
which  holds the lives, the liberty and the property of  its
citizens,  subject at all times to the absolute  disposition
and unlimited control of even the most democratic depository
of power, is after all but a despotism."  In India it is the
Constitution  that is supreme and Parliament as well as  the
State  Legislatures must not only act within the  limits  of
their  respective legislative spheres as demarcated  in  the
three
 (1) 110 U.S. 516.
32
248
lists occuring in the Seventh Schedule to the  Constitution,
but Part III of the Constitution guarantees to the  citizens
certain  fundamental rights which the legislative  authority
can  on  no account transgress. A statute law  to  be  valid
must, in all cases, be in conformity with the constitutional
requirements  and it is for the judiciary to decide  whether
any  enactment is unconstitutional or not.   Article 13  (2)
is imperative on this point and provides expressly that  the
State  shall not make any law which takes away  or  abridges
the right conferred by this Part and any law made in contra-
vention  of this clause shall, to the extent of the  contra-
vention,  be  void.   Clause (1) of  the  article  similarly
invalidates  all existing laws which are  inconsistent  with
the provisions of this Part of the Constitution.
    The  fundamental rights guaranteed by  the  Constitution
have been classified under seven heads or categories.   They
are:
(1) Right to equality;
(2) Right to freedom;
(3)  Right  against exploitation;
(4) Right to freedom of  religion;
(5) Cultural and educational rights;
 (6) Right to property;  and
(7) Right to constitutional remedy.
 The arrangement differs  in many respects from that adopted
in the American Constitution and bears a likeness on certain
points to similar declarations in the Constitutions of other
countries.
Of  the different classes  of fundamental rights spoken   of
above, we are concerned here primarily with right to freedom
which is  dealt with in four articles beginning from article
19   and  also  with the  right  to  constitutional   remedy
which  is   embodied   in article 32.
    Article 10 enumerates certain forms of liberty or  free-
dom, the protection of which is guaranteed by the  Constitu-
tion.  In article 20, certain protections are given in cases
of  persons  accused of criminal offences. Article  21  lays
down  in general terms that no person shall be  deprived of
his life or personal liberty, except
249
according  to procedure established by law. Article 22  pro-
vides for certain additional safeguards in respect to arrest
and detention and by way of exception to the rules so  made,
makes certain special provisions for the particular form  of
detention known as Preventive Detention.
    The first contention advanced by Mr. Nambiar involves  a
consideration  of  the  question as  to  whether  Preventive
Detention,  which  is  the subject matter  of  the  impugned
legislative  enactment, comes within the purview of  article
19  (1) (d) of the Constitution, according to which a  right
to  move freely throughout the territory of India is one  of
the  fundamental rights guaranteed to all citizens.   If  it
comes within that sub-clause, it is not disputed that clause
(5)  of article 19 would be attracted to it and it would  be
for  the courts to decide whether the  restrictions  imposed
upon  this right by the Parliament are  reasonable  restric-
tions  and are within the permissible limits  prescribed  by
clause (5) of the article.
    There  is no authoritative definition of the term  'Pre-
ventive Detention' in Indian law, though as description of a
topic  of legislation it occurred in the  Legislative  Lists
of  the Government of India Act, 1935, and has been used  in
Item  9  of  List I and Item 3 of List III  in  the  Seventh
Schedule to the Constitution.  The expression has its origin
in  the language used by Judges or the law Lords in  England
while explaining the nature of detention under Regulation 14
(B) of the Defence of Realm Consolidation Act, 1914,  passed
on  the outbreak of the First World War; and the  same  lan-
guage was repeated in connection with the emergency  regula-
tions made during the last World War.  The word ' preventive
' is used in contradistinction to the word ' punitive.'   To
quote  the words of Lord Finlay in Rex v. Halliday(1),   "it
is  not a punitive but a precautionary measure." The  object
is  not  to punish a man for having done  something  but  to
intercept  him  before he does it and to  prevent  him  from
doing  it. No offence is proved, nor any charge  formulated;
and the justification of such detention is suspicion
(1) [1917] A.C. 260 at p. 269.
250
or reasonable probability and not criminal conviction  which
can  only be warranted by legal evidence (1).  Detention  in
such  form  is  unknown in America. It was  resorted  to  in
England  only  during war time but no country in  the  world
that  I am aware of has made this an integral part of  their
Constitution as has been done in India.  This is undoubtedly
unfortunate,  but  it is not our business  to  speculate  on
questions  of  policy or to attempt to explore  the  reasons
which  led the representatives of our people to make such  a
drastic  provision in the Constitution itself, which  cannot
but be regarded as a most unwholesome encroachment upon  the
liberties of the people.
    The  detention of a man even as a precautionary  measure
certainly  deprives  him  of his personal  liberty,  and  as
article  21  guarantees to every man, be he a citizen  or  a
foreigner,  that  he shall not be deprived of his  life  and
personal  liberty, except in accordance with  the  procedure
established  by  law, the requirements of article  21  would
certainly  have  to  be complied with,  to  make  preventive
detention  valid in law. What these requirements are I  will
discuss later on.  Article 22 comes immediately after  arti-
cle  21.   It  secures to all  persons  certain  fundamental
rights  in relation to arrest and detention, and as  already
said, by way of exception to the rights thus declared, makes
certain  specific provisions relating to  preventive  deten-
tion.  The subject of preventive detention is  specified  in
and constitutes Item No. 9 in the Union legislative List and
it  also  forms Item  No. 3 in the Concurrent  List.   Under
article  246  of the Constitution, the  Parliament  and  the
State  Legislatures are empowered to legislate on this  sub-
ject  within  the  ambit of  their  respective  authorities.
Clause(3)  of article 22 expressly enjoins that the  protec-
tive provisions of clauses (1) and (2) of the article  would
not be available to persons detained under any law providing
for preventive detention.  The only fundamental rights which
are guaranteed by the Constitution in the matter of  preven-
tive  detention and which to that extent  impose  restraints
upon the exercise of legislative powers in that respect are
(1)  Vide  Lord Macmillan in Liversidge v.  Anderson  [1942]
A.C. 206 at p. 254.
251
contained  in clauses (4) to (7) of article 22.  Clause  (4)
lays  down that no law of preventive detention shall  autho-
rise  the  detention of a person for a  period  longer  than
three  months, unless an advisory board  constituted in  the
manner laid down in sub-clause (a) of the clause has report-
ed before the expiration of the period that there is  suffi-
cient  cause  for such detention. The  period  of  detention
cannot,  in any event, exceed the maximum which the  Parlia-
ment  is  entitled to prescribe under clause  (7)  (b).  The
Parliament  is  also given the authority to  prescribe   the
circumstances  and the class of cases under which  a  person
can be detained for a period longer than three months  under
any law of preventive detention without obtaining the  opin-
ion of the advisory board.  There is one safeguard  provided
for  all  cases which is contained in clause (5)  and  which
lays  down that the authority making the order of  detention
shall,  as soon as possible communicate to such  person  the
grounds  on which the order has been made and  shall  afford
him  the  earliest opportunity of  making  a  representation
against  the  order.   But even here,  the  authority  while
giving the grounds of detention need not disclose such facts
which it considers against public interest to disclose.
   The  question that we have to consider is whether a  law
relating  to preventive detention is justiciable in a  Court
of law on the ground of reasonableness under article 19  (5)
of  the Constitution inasmuch as it takes away  or  abridges
the right to free movement in the territory of India guaran-
teed  by clause (1) (d)of the article. It will be seen  from
what has been said above that article 22 deals  specifically
with the subject of preventive detention and expressly takes
away the fundamental rights relating to arrest and detention
enumerated  in clauses (1) and (2) of the article from  per-
sons  who are detained under any law which may be passed  by
the  Parliament or State Legislatures acting  under  article
246 of the Constitution read with the relevant items in  the
legislative  lists.  I will leave aside for the  moment  the
question as to how far the court can examine the reasonable-
ness or otherwise of the procedure that is prescribed by any
law relating
252
to preventive detention, for that would involve a considera-
tion  of the precise scope and meaning of article.  21;  but
this  much is beyond controversy that so far as  substantive
law  is  concerned, article 22 of the Constitution  gives  a
clear  authority to the legislature to take away the  funda-
mental  rights relating to arrest and detention,  which  are
secured by the'first two clauses of the article. Any  legis-
lation  on  the subject would only have to  conform  to  the
requirements  of  clauses (4) to (7) and  provided  that  is
done,  there is nothing in the language employed nor in  the
context  in  which it appears which affords any  ground  for
suggestion that such law must be reasonable in its character
and that it would be reviewable by the Court on that ground.
Both  articles 19 and 22 occur in the same Part of the  Con-
stitution and both of them purport to lay down the fundamen-
tal  rights which the Constitution guarantees.  It  is  well
settled that the Constitution must be interpreted in a broad
and  liberal manner giving effect to all its parts, and  the
presumption  should  be that no conflict or  repugnancy  was
intended  by  its framers.  In interpreting the words  of  a
Constitution,  the same principles undoubtedly  apply  which
are applicable in construing a statute, but as was  observed
by Lord Wright in James v. Commonwealth of Australia ( 1  ),
"the  ultimate  result must be determined  upon  the  actual
words used not in vacuo but as occurring in a single complex
instrument in which one part may throw light on the  other."
"The  Constitution," his Lordship went on saying, "has  been
described  as the federal compact and the construction  must
hold a balance between all its parts."
    It  seems to me that there is no conflict or  repugnancy
between the two provisions of the Constitution and an exami-