dedol-hf/india-case-legal-rag huggingface dataset:
vague  if the only answer of the detained person can  be  to
deny it. That is a matter of detail which has to be examined
in  the  light  of the circumstances of each  case.   If  on
reading  the ground  furnished it is capable of being intel-
ligently understood and is sufficiently definite to  furnish
materials to enable the detained person to make a  represen-
tation  against the order of detention it cannot  be  called
vague.   The only argument which could be urged is that  the
language used in specifying the ground is so general that it
does not permit the detained person to legitimately meet the
charge against him because the only answer which he can make
is  to say that he did not act as generally  suggested.   In
certain cases that argument may support the contention  that
having regard to the general language used in the ground  he
has not been given the earliest opportunity to make a repre-
sentation  against  the  order of detention.  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 detained person.
    The argument that supplementary grounds cannot be  given
after the grounds are first given to the detenue,  similarly
requires  a closer examination. The  adjective   "supplemen-
tary"  is capable of covering cases of adding new grounds to
the  original  grounds, as also giving  particulars  of  the
facts  which  are already mentioned, or of giving  facts  in
addition to the facts mentioned in the ground to lead to the
conclusion  of fact contained in the ground originally  fur-
nished.   It is clear that if by "supplementary grounds"  is
meant additional grounds, i.e., conclusions of fact required
to  bring  about  the satisfaction of  the  Government,  the
furnishing  of any such additional grounds at a later  stage
will amount to an infringement of the first mentioned  right
in article 22 (5) as the grounds for the order of  detention
must  be before the Government before it is satisfied  about
the necessity for making the order and all such grounds have
to be furnished
186
as  soon  as may be.  The other aspects,  viz.,  the  second
communication (described as supplemental grounds) being only
particulars  of   the facts  mentioned or indicated  in  the
grounds first supplied, or being additional incidents  which
taken  along  with the facts mentioned or indicated  in  the
ground already conveyed lead to the same conclusion of fact,
(which is the ground furnished in the first instance)  stand
on  a different footing.  These are not new  grounds  within
the  meaning  of the first part of article  22  (5).   Thus,
while  the  first  mentioned type  of  "additional"  grounds
cannot be given after the grounds are furnished in the first
instance,  the  other  types even  if  furnished  after  the
grounds  are furnished as soon as may be, but provided  they
are furnished so as not to come in conflict with giving  the
earliest opportunity to the detained person to make a repre-
sentation, will not be considered an infringement of  either
of  the rights mentioned in article 22 (5) of the  Constitu-
tion.
    This  detailed examination shows that preventive  deten-
tion  is not by itself considered an infringement of any  of
the fundamental rights mentioned in Part III of the  Consti-
tution.   This  is, of course, subject  to  the  limitations
prescribed  in  clause (5) of article 22.  That  clause,  as
noticed above, requires two things to be done for the person
against  whom the order is made. By reason of the fact  that
clause  (5)forms part of Part III of the  Constitution,  its
provisions  have  the same force and sanctity as  any  other
provision  relating  to fundamental rights.  As  the  clause
prescribes two requirements, the time factor in each case is
necessarily left fluid.  While there is the duty on the part
of  the detaining authority to furnish grounds and the  duty
to give the detained person the earliest opportunity to make
a  representation,  which obligations, as shown  above,  are
correlated, there exists no express provision  contemplating
a second  communication from the detaining authority to  the
person detained.  This is because in several cases a  second
communication  may not be necessary at all. The  only  thing
which emerges from the discussion is that while the authori-
ties must
187
discharge  the  duty  in furnishing grounds  for  the  order
detention "as soon as may be" and also provide "the earliest
opportunity to the detained person to' make the  representa-
tion",  the  number  of communications  from  the  detaining
authority to the detenue may be one or more and they may  be
made  at intervals, provided the two parts of the  aforesaid
duty are discharged in accordance with the wording of clause
(5).  So long as the later communications do not make out  a
new  ground, their contents are no infringement of  the  two
procedural  rights of the detenue mentioned in  the  clause.
They  may  consist of a narration of  facts  or  particulars
relating  to the grounds already supplied. But in  doing  so
the time factor in respect of the second duty, viz. to  give
the  detained  person  the earliest opportunity  to  make  a
representation, cannot be overlooked.  That appears to us to
be the result of clause (5) of article 22.
    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 of words in the communication convey-
ing the grounds of detention.  In our opinion, this attitude
is quite deplorable.  We agree with the High Court of Bombay
in its observation when it says:  "In all the matters  which
have  come up before us we have been distressed to find  how
vague and unsatisfactory the grounds are which the detaining
authority furnished to the detenue; and we are compelled  to
say that in almost every case we have felt that the  grounds
could  have been ampler and fuller without any detriment  to
public  interest." While the Constitution gives the  Govern-
ment  the  privilege of not disclosing  in  public  interest
facts  which  it considers undesirable to disclose,  by  the
words used in article 22 (5) there is a clear obligation  to
convey to the detained person materials (and the  disclosure
of which is not necessary to be withheld) which will  enable
him to make a representation.  It may be
188
noticed  that  the  Preventive Detention Act  may  not  even
contain machinery to have the representation looked into  by
an independent authority or an advisory board.  Under  these
circumstances, it is but right to emphasize that the  commu-
nication made  to  the detained person to enable him to make
the  representation should, consistently with the  privilege
not  to  disclose facts which are not desirable to  be  dis-
closed  in public interest, be as full and adequate  as  the
circumstances permit and should be made as soon as it can be
done.  Any deviation from this rule is a deviation from  the
intention  underlying  article 22 (5) of  the  Constitution.
The  result of this attitude of some  detaining  authorities
has been that, applying the tests mentioned' above,  several
communications   to  the detained persons  have  been  found
wanting  and  the orders of detention are pronounced  to  be
invalid.
Having regard to the principles mentioned above, we have
to  consider whether the judgment of the High Court is  cor-
rect.   We have already pointed out that the summary  rejec-
tion by the High Court of the later communication solely  on
the  ground that all materials in all circumstances must  be
furnished to the detenue when the grounds are first communi-
cated, is not sound. We have indicated the circumstances and
conditions  under which the later communication may  or  may
not  be considered as falling within the purview of  article
22 (5) of the Constitution.
    In dealing with the position when the grounds were first
communicated, the High Court held as follows: "This is not a
ground which would enable the detenue to make a  representa-
tion  to which he is entitled both under the Act  and  under
the Constitution."  In this case the later communication  of
the  26th August, 1950, was made after the respondent  filed
his petition and it appears to have been made to  controvert
his  allegation that he was never in Bombay between  January
and April, 1950, as alleged in his affidavit.  After  taking
into  consideration  this communication it was  observed  by
Chagla C.J. that if these particulars had been furnished  on
29th April, 1950, very likely the
189
court  would have rejected the petition.  The court set  the
respondent  free  only because of its view that  after  29th
April  no  further communication was  permissible.'  In  our
opinion, this view is erroneous.  We think that on the facts
of  the  present case therefore  the  respondent's  petition
should have been dismissed.  We therefore allow the appeal.
    PATANJALI  SASTRI. J.--While I concur in the order  pro-
posed  by  my  Lord that this appeal should  be  allowed,  I
regret  I find myself unable to agree with him on  the  true
meaning  and  effect  of article 22, clause  (8),  which  is
reproduced  in  section 7 of the Preventive  Detention  Act,
1950, (hereinafter referred to as "the Act").  Put  shortly,
the question that falls to be decided is:  Is it within  the
competence of the court to examine the grounds  communicated
to  a person detained under the Act, with a view to  see  if
they  are sufficient in its opinion to enable him to make  a
representation to the detaining authority against the order,
and if they are not, to direct his release ?
    It  is  now settled by the decision of the  majority  in
Gopalan's  case(1) that article 21 is applicable to  preven-
tive detention except in so far as the provisions of article
22  (4) to (7) either expressly or by necessary  implication
exclude  its  application,  with the result  that  a  person
cannot be deprived of his personal liberty, even for preven-
tive purposes, "except according to procedure established by
law." Part of such procedure is provided by the Constitution
itself  in clauses (5) and (6) of article 22 which  read  as
follows:
    "(5)  When  any person is detained in  pursuance  of  an
order made under any law providing for preventive detention,
the  authority  making the order shall, as soon as  may  be,
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.
    (6)  Nothing in clause (5) shall require  the  authority
making  any  such  order as is referred to  in  that  clause
 (1) [1950] S.C.R. 88.
190
to  disclose  facts  which such authority  considers  to  be
against the public interest to disclose.
    If this procedure is not complied with, detention  under
the Act may well be held to be unlawful, as it would then be
deprivation  of personal liberty which is not in  accordance
with the procedure established by law.  The question accord-
ingly  arises as to what are the requirements of article  22
(5) and whether they have been complied with in the  present
case ?
    On behalf of the respondent it is urged that the  clause
provides  two  safeguards for the person ordered to  be  de-
tained, namely, that (1) the grounds of his detention should
be communicated to him as soon as may be, and (2) he  should
be given the earliest opportunity of making a representation
against the order. As there is to be no trial in such cases,
the  right of making a representation affords, it  is  said,
the  only opportunity to the person detained to  repell  the
accusation brought against him and establish his  innocence.
It is the communication of the grounds of detention that  is
expected to give him notice of what he is to meet by  making
a  representation.  The grounds must, therefore, it is  sub-
mitted, give sufficient indication of the nature and  extent
of  the information on which action has been  taken  against
him and must contain sufficient particulars of the time  and
place  of the acts charged, so as to enable him to make  his
representation effective as far as it is in his power to  do
so.  If the grounds are vague and do not disclose  the  sub-
stance  of the information on which the detention  has  been
based, there would be no real compliance with the  procedure
prescribed by article 22 (s), and the detention must, it  is
claimed, be unlawful. In other words, the sufficiency of the
grounds  for the purpose of enabling the person detained  to
make an effective representation against the order of deten-
tion is, in every case, a justiciable issue.
    It must now be taken as settled by the decision of  this
Court in Gopalan's case(1), which on this point was
(1) [1951] S.C.R. 88.
191
unanimous,  that section 3 of the Act is constitutional  and
valid notwithstanding that it leaves  it to the,  "satisfac-
tion"  of the executive government to decide whether  action
under  the Act is to be taken or not against any  particular
person  or persons.  The learned:Chief Justice  pointed  out
(at p. 121) that action by way of preventive detention  must
be based largely on suspicion, and quoted the remark of Lord
Finlay  in  Rex v. Halliday(1), that a court  is  the  least
appropriate  tribunal  to investigate the  question  whether
circumstances   of   suspicion  exist   warranting  the  re-
straint  on  a person.  Dealing with   a   similarly  worded
provision  of the Central Provinces and Berar Public  Safety
Act,  1948, the Federal Court declared in another  unanimous
judgment, that "The language clearly shows that the  respon-
sibility for making a detention order rests upon the provin-
cial executive as they alone are entrusted with the duty  of
maintaining  public peace;and it would be a serious  deroga-
tion  from that responsibility if the court were to  substi-
tute  its  judgment for the satisfaction of  the   executive
authority  and, to that end, undertake an  investigation  of
the sufficiency of the materials on which such  satisfaction
was grounded  .........  The court can, however, examine the
grounds  disclosed  by  the Government to see  if  they  are
relevant  to the object which the legislation has  in  view,
namely, the prevention of acts prejudicial to public  safety
and tranquillity, for "satisfaction" in this connection must
be  grounded  on material which is of  rationally  probative
value"-Machindar   Shivaji  Mahar v. The King  (2).    These
decisions  clearly establish, what indeed is plain from  the
nature  of the measure, that preventive detention is a  form
of  precautionary police action, to be employed on the  sole
responsibility of the executive government whose  discretion
is  final, no recourse being permitted to a court of law  by
way  of  review or justification of such  action  except  on
allegations of mala fides or irrational conduct.
(1) [1917] A.C. 260, 269.       (2) [1949-50]
25
192
    When the power to issue a detention order has thus  been
made to depend upon the existence of a state of mind in  the
detaining authority, that is, its "satisfaction", which is a
purely  subjective  condition, so as to exclude  a  judicial
enquiry  into the sufficiency of the grounds to justify  the
detention,  it  seems to me to be wholly  inconsistent  with
that scheme to hold that it is open to the court to  examine
the  sufficiency  of the same grounds to enable  the  person
detained  to  make a representation, for, be it  noted,  the
grounds to be communicated to the person detained  are   the
"grounds  on which the order  has  been  made." Indeed,  the
logical result of the argument advanced by the  respondent's
counsel  would be to invalidate section 3 of the Act  in  so
far  as it purports to make the satisfaction of the  govern-
ment  the  sole  condition of a lawful  detention,  for,  if
clause  (5) of article 22 were to be construed as  impliedly
authorising a judicial review of the grounds of detention to
see  if  they contain sufficient particulars for  making   a
representation, then, the subjective condition prescribed in
section 3 would be inconsistent with that clause and  there-
fore void.  When this was pointed out to counsel he  submit-
ted  that the decision in Gopalan's case (1) as to the  con-
stitutionality of section 3 required reconsideration in  the
light  of  his arguments based on article  22,  clause  (5).
Although the clause was not then considered from this  point
of view, it came in for a good deal of discussion in connec-
tion  with  section 14 of the Act and the  present  argument
must, in my opinion, be rejected because it runs counter  to
that decision.
    Apart  from  this aspect of the matter, I  am  not  much
impressed with the merits of the argument.  While  granting,
in view of the structure and wording of clause (5), that the
grounds communicated to  the person detained are to form the
basis  of his representation against the order, I am  unable
to  agree with what appears to be the major premise  of  the
argument,  namely, that clause (5) contemplates  an  inquiry
where  the  person detained is to be formally  charged  with
(1) [1950] S.C.R.188,
193
specific  acts or omissions of a culpable nature and  called
upon to answer them.  As pointed out by Lord Atkinson in Rex
v. Halliday (1), preventive detention' being a precautionary
measure,  "it must necessarily proceed in all cases to  some
extent  on  suspicion  or,  anticipation  as  distinct  from
proof",  and  it must be capable of being  employed  by  the
executive  government  in sudden emergencies  on  unverified
information supplied to them by their police or intelligence
officers.   the Government, acting honestly and in good faith
make an order being "satisfied" on such information, however
lacking  in particulars, that a person should  be   detained
in  the  public  interest, as they have  been  empowered  by
Parliament  to do, then all that article 22 (5) requires  of
them  is to communicate as soon as may be the grounds  which
led to the making of the order, to the person concerned, and
to give him the earliest opportunity of making any represen-
tation  which  he may wish to make on the basis of  what  is
communicated to him. If such communication is made and  such
opportunity  is  given  the detaining  authority  will  have
complied with the procedure prescribed by the  Constitution,
and the person under  detention cannot complain that he  has
been  deprived  of his personal liberty  otherwise  than  in
accordance  with  the procedure established by law.   I  can
find nothing in article 22, clause (5), to warrant the  view
that  the grounds on which the order of detention  has  been
made  must  be such that, when communicated  to  the  person
detained  they are found by a court of law to be  sufficient
to  enable  him to make what the court considers  to  be  an
adequate representation.  The right to be produced before  a
Magistrate and to consult and be defended by a legal practi-
tioner  is expressly denied by the Constitution itself to  a
person under preventive detention [vide article 22 (1),  (2)
and  (3)3  and this. Court held in  Gopalan's  case(2)  that
there  was nothing in the Constitution to entitle him  to  a
hearing  even  before  the detaining  authority.   All  this
underlines the executive character of the function exercised
by
(1) [1917] A.C. 260, 275.            (2) [1950] S.C.R. 88,
194
the authority which does not in any way embark on a judicial
or quasi-judicial inquiry.  In such circumstances the repre-
sentation  which the person detained is allowed to  make  to
the  Government, which is constituted the judge in  its  own
cause,  cannot be assumed to be similar in scope or  purpose
to a defence against a formulated charge in a court of  law.
The  argument, therefore, that the right of making a  repre-
sentation  should be made effective in the sense  that  such
person  should be enabled to defend himself successfully  if
possible,  and,  for that purpose, the  detaining  authority
should communicate to him the necessary particulars on  pain
of  having  the order quashed if such  particulars  are  not
furnished, proceeds on a misconception of the true position.
    Perhaps  the most cogent reason for rejecting the  argu-
ment is to be found in the language and provision of  clause
(6) of article 22.  "Nothing in clause (5)", that is to say,
neither the right to be informed of the "grounds" of  deten-
tion  nor  the  right to   make   a  "representation"  shall
"require"  the detaining authority to disclose  facts  which
the  authority  "considers" should not be disclosed  in  the
public  interest. In other words, clause (5) should  not  be
taken  to import an obligation to provide particulars  which
the authority is given an absolute discretion to furnish  or
withhold.
    I  cannot understand how it can be claimed, in the  face
of clause (6), that it is incumbent on the executive govern-
ment to communicate particulars which a court of law consid-
ers necessary to enable the person detained to make a repre-
sentation.   It  cannot be compulsory to  furnish  what  the
authority  is given an uncontrolled power to decide to  give
or  to refuse.  The combined effect of clauses (5)  and  (6)
is,  to  my  mind, to require the  detaining  authority,  to
communicate to the person affected only such particulars  as
that authority and not a court of law, considers  sufficient
to enable the said person to make a representation.
    It is worthy of note that in the well-known English case
of Liversidge v. Anderson C), the existence of a
  (1) [1942] A.C. 206.
195
similar privilege was regarded as a "very cogent reason" for
holding  that the words "If the Secretary of State has  rea-
sonable cause to believe" did not raise a justiciable  issue
as  to  the existence of such cause as  an  objective  fact.
Viscount Maugham observed "It is beyond dispute that he  can
decline to disclose the information on which he has acted on
the  ground  that to do so would be contrary to  the  public
interest,  and  that this privilege of the Crown  cannot  be
disputed.  It is not ad rem on the question of  construction
to  say  in reply to this argument that there are  cases  in
which the Secretary of State could answer the attack on  the
validity  of  the order for detention  without  raising  the
point of privilege.  It is sufficient to say that there must
be a large number of cases in which the information on which
the  Secretary of State is likely to act will be of  a  very
confidential  nature.  That must have been  plain  to  those
responsible   in   advising  His Majesty in  regard  to  the
Order in Council, and it constitutes, in my opinion, a  very
cogent reason  for thinking that the words under  discussion
cannot be read as meaning that the existence of  'reasonable
cause'  is one which may be discussed in a court  which  has
not the power of eliciting the facts which in the opinion of
the Secretary of State amount to 'reasonable cause'."
There  was considerable discussion as to the meaning  of
the words "grounds" and "representation" used in clause (5).
These are words of very wide connotation and, in the view  I
have  expressed, it is unnecessary to define them.  It  may,
however, be noted that clauses (5) and (6) are not  mutually
exclusive  in  the sense that, when clause (6)  is  invoked,
clause  (5) ceases to be applicable.  When,  therefore,  the
detaining  authority  withholds  the  material  facts  under
clause  (6)and  communicates  to  the  person  detained  the
grounds of  detention, which in that case must be necessari-
ly   vague,  it  would  still  be  communicating to him  the
"grounds" on which the order has been made, and such  repre-
sentation  as  the person may wish to make on the  basis  of
that communication would
196