dedol-hf/india-case-legal-rag huggingface dataset:
as a matter of fundamental right, is silent about the person
detained having a right to be heard
123
orally or by a lawyer.  The Constituent Assembly had  before
them the provisions of clause (1) of the same article.   The
Assembly  having  dealt with the requirements  of  receiving
grounds  and giving an opportunity to make a  representation
has  deliberately  refrained from providing a  right  to  be
heard orally.  If so, I do not read the clause as guarantee-
ing such right under article 22 (5).  An "orderly course  of
procedure" is not limited to procedure which has been  sanc-
tioned  by  settled usage.  New forms of  procedure  are  as
much, held even by the Supreme Court of America, due process
of  law  as old forms, provided they give a  person  a  fair
opportunity to present his case.  It was contended that  the
right to make a representation in article 22 (5) must  carry
with  it  a right to be heard by  an  independent  tribunal;
otherwise  the making of a representation has  no  substance
because it is not an effective remedy.  I am unable to  read
clause  (5) of .article 22 as giving a fundamental right  to
be  heard  by  an independent  tribunal.   The  Constitution
deliberately  stops at giving the right  of  representation.
This is natural because under article 22 (7), in terms,  the
Constitution  permits the making of a law by  Parliament  in
which  a reference to an advisory board may be omitted.   To
consider  the right to make a representation as  necessarily
including  a right to be heard by an  independent  judicial,
administrative or advisory tribunal will thus be directly in
conflict with the express words of article 22 (7).
    Even according to the Supreme Court of U.S.A. a right to
a  judicial trial is not absolute.  In the United States  v.
Ju Toy (1), a question arose about the exclusion from  entry
into the States, of a Chinese who claimed to be a citizen of
the  United States.  At page 263 the majority judgment  con-
tains  the  following  passage :--" If for  the  purpose  of
argument,  we  assume that the Fifth  Amendment  applies  to
him,   and that to deny entrance to a citizen is to  deprive
him  ,of liberty, we nevertheless are of opinion  that  with
regard  to him due process of law does not require  judicial
trial: That is the result of the cases which we have  cited,
and the almost necessary result of the
(1) (198) U.S. 253 at 263.
124
power  of  the Congress to pass exclusion  laws.   That  the
decision may be entrusted to an executive officer, and  that
his  decision  is due process of law, was affirmed  and  ex-
plained  in several cases.  It is unnecessary to repeat  the
often-quoted remarks of Mr. Justice Curtis, speaking for the
whole  Court, in Den Exden Murray v. Hoboken  Land  and  Im-
provement  Company (1), to. show that the requirement  of  a
judicial trial does not prevail in every case."
    Again, I am not prepared to accept the' contention  that
a right to be heard orally  is an essential right of  proce-
dure  even according to the rules of natural  justice.   The
right  to  make  a defence may be admitted,  but  there   is
nothing to support the contention that an oral interview  is
compulsory.   In the Local Government Board v. Arlidge  (2),
the  respondent applied to the Board constituted  under  the
Housing  Act to state a special case for the opinion of  the
High  Court, contending that the order was  invalid  because
(1) the report of the Inspector had been treated as a confi-
dential document and had not been disclosed to the  respond-
ent,  and  (2)  because the Board had declined to  give  the
respondent  an  opportunity  of being heard  orally  by  the
person  or persons by whom the appeal was  finally  decided.
The  Board rejected the application.  Both the  points  were
urged  before  the  House of Lords  on    appeal.   Viscount
Haldane L.C. in his speech rejected the contention about the
necessity  of an oral hearing by observing "But it does  not
follow  that  the procedure of every  tribunal  must  be.the
same.   In  the  case of a Court of law  tradition  in  this
country  has prescribed certain principles to which, in  the
main,  the procedure must conform.  But what that  procedure
is to be in detail must depend on the nature of a tribunal."
In  rejecting  the contention about the  disclosure  of  the
report  of  the Inspector, the Lord Chancellor  stated:  "It
might or might not have been useful to disclose this report,
but  I do not think that the Board was bound to do  so.  any
more  than  it  would have been bound to  disclose  all  the
minutes made on the papers in the office before
(1) 18 HO.W. 272 at 280.                (2) (1915) A.C. 120.
125
a  decision was come to  ......  What appears to me to  have
been  the  fallacy of the judgment of the  majority  in  the
Court  of appeal is that it begs the question at the  begin-
ning  by setting up the test of the procedure of a Court  of
justice  instead of the other standard which was  laid  down
for  such cases in Board of Education v. Rice (1). I do  not
think  the  Board was bound to hear  the  respondent  orally
provided it gave him the opportunities he actually had."  In
spite of the fact that in England the Parliament is  supreme
I am unable to accept the view that the Parliament in making
laws,  legislates against the well-recognised principles  of
natural justice accepted as such in all civilized countries.
The  same view is accepted in the United States  in  Federal
Communications Commission v. WJR The Goodwill Station (2).
    A  right  to lead evidence against  facts  suspected  to
exist is also not essential in the case of preventive deten-
tion.   Article 22 (6) permits the non-disclosure of  facts.
That is one of the clauses of the Constitution dealing  with
fundamental rights.  If even the non-disclosure of facts  is
permitted,  I  fail to see how there can exist  a  right  to
contest  facts  by  evidence and the  noninclusion  of  such
procedural right could make this Act invalid.
    Section  10  (3) was challenged on the  ground  that  it
excludes  the  right to appear in person or  by  any  lawyer
before the advisory board and it was argued that this was an
infringement of a fundamental right. It must be noticed that
article  22  (1) which gives a detained person  a  right  to
consult  or  be defended by his own  legal  practitioner  is
specifically  excluded  by  article 22 (3) in  the  case  of
legislation  dealing with preventive detention.   Moreover,.
the Parliament is expressly given power under article 22 (7)
(c)  to lay down the procedure in an inquiry by an  advisory
board. This is also a part of article 22 itself.  If so, how
can  the omission to give a right to audience be  considered
-against  the  constitutional rights ?  It was  pointed  out
that section 10 (3) prevents even the disclosure of a
(1) (1911) A.C. 179.        (2) 337 U.S. 265 at 276.
126
portion of the report and opinion of the advisory board.. It
was argued that if so how can the detained person put  forth
his  case  before a Court and challenge  the  conclusions  ?
This  argument  was similarly advanced in  Local  Government
Board  v. Arlidge (1) and rejected, as mentioned above.   In
my opinion, the answer is in the provision found in  article
22 (7) (c) of the Constitution of India.
    It  was argued that section 11 of the impugned  Act  was
invalid as it permitted the continuance of the detention for
such  period as the Central Government or the State  Govern-
ment thought fit.  This may mean an indefinite period. In my
opinion this argument has nos substance because the Act  has
to  be read as a whole., The whole life of the Act is for  a
year  and therefore the argument that the detention  may  be
for  an indefinite period is unsound.  Again, by  virtue  of
article 22 (7)(b), the Parliament is not obliged to fix  the
maximum  term  of such detention.  It has not so  fixed  it,
except  under section 12, and therefore it cannot be  stated
that section 11 is in contravention of article 22 (7).
    Section  12  of the impugned Act is  challenged  on  the
ground that it does not conform to the provisions of article
22 (7).  It is argued that article 22 (7) permits preventive
detention  beyond  three months, when  the  Parliament  pre-
scribes "the circumstances in which, and the class or class-
es  of  cases in which," a person may be detained.   It  was
argued that both these conditions must be fulfilled.  In  my
opinion, this argument is unsound, because the words used in
article  22 (7) themselves are against such  interpretation.
The  use of the word "which" twice in the first part of  the
sub-clause,  read with the comma put after each, shows  that
the  legislature wanted these to be read as disjunctive  and
not  conjunctive.   Such argument might have  been  possible
(though  not  necessarily accepted) if' the article  in  the
Constitution was "the circumstances. and the class or class-
es of cases in which  ......  "I have. no doubt that by  the
clause, as worded, the legislature-
  (1) (1915) A.C. 120.
127
intended that the power of preventive detention beyond three
months  may  be  exercised either if  the  circumstances  in
which,  or the class or classes of cases in which, a  person
is  suspected or apprehended to be doing  the  objectionable
things mentioned in the section.  This contention  therefore
fails.
    It was next contended that by section 12 the  Parliament
had  provided that a person might be detained for  a  period
longer than three months but not exceeding one year from the
date  of his detention, without obtaining the opinion of  an
advisory  board, with a view to prevent him from  acting  in
any  manner prejudicial to (a) the defence of  India,  rela-
tions of India with foreign powers or the security of India;
or  (b)the security of a State or the maintenance of  public
order.  It must be noticed that the contingency provided  in
section  3 (1) (a) (iii), viz., the maintenance of  supplies
and  services essential to the community is omitted in  sec-
tion  12.  Relying on the wording of these two  sub-sections
in  section 12, it was argued that in the impugned  Act  the
wording of Schedule VII List I, Entry 9, and List III, Entry
3,  except  the last part, are only copied.   This  did  not
comply  with the requirement to specify either  the  circum-
stances or the class or classes of cases as is necessary  to
be  done under article 22 (7) of the Constitution.   Circum-
stances  ordinarily mean events or situation  extraneous  to
the  actions of the individual concerned, while a  class  of
cases  mean determinable groups based on the actions of  the
individuals  with a common aim or idea. Determinable may  be
according  to the nature of the object also.  It is  obvious
that the classification can be by grouping the activities of
people  or  by specifying the objectives to be  attained  or
avoided.  The argument advanced on behalf of the  petitioner
on this point does not' appeal to me because it assumes that
the  words  of Schedule VII List I, Entry 9, and  List  III,
Entry  3  are never capable of being considered  as  circum-
stances or classes of cases.  In my opinion, that assumption
is  not  justified, particularly when we have to  take  into
consideration cases of preventive
17
128
detention  and  not of conviction  and  punitive  detention.
Each of the expressions used in those entries is capable  of
complying  with the requirement of mentioning  circumstances
or  classes  of cases. The classification of  cases,  having
regard  to an object, may itself amount to a description  of
the  circumstances.   It is not disputed that  each  of  the
entries in the Legislative Lists in the Seventh Schedule has
a specific connotation well understood and ascertainable  in
law.  If so, there appears no reason why the same expression
when used in section 12 (1) (a) and (b) of the impugned  Act
should  not be held to have such specific meaning  and  thus
comply with the requirement of prescribing circumstances  or
classes of cases.  This argument therefore must be rejected.
    Section 13(2) was attacked on the ground that even if  a
detention  order was revoked, another detention order  under
section 3 might be made against the same person on the  same
grounds.    This clause appears to be inserted to prevent  a
man being released if a detention order was held invalid  on
some  technical ground.  There is nothing in the Chapter  on
Fundamental  Rights and in article 21 or 22 to  prevent  the
inclusion  of such a clause in a parliamentary  legislation,
permitting preventive detention.  Article 20 (2) may be read
as a contrast on this point.
    Dealing with the four fundamental principles of  natural
justice  in procedure claimed by the petitioner, it is  thus
clear that in respect of preventive detention no question of
an objective standard of human conduct can be laid down.  It
is  conceded that no notice before detention can be  claimed
by  the  very nature of such detention.  The  argument  that
after  detention intimation of the grounds should  be  given
has  been recognised in article 22 (5) and  incorporated  in
the     impugned   Act.  As regards an  impartial  tribunal,
article  22 and  (7)  read  together give  the    Parliament
ample  discretion.   When  in  specified  circumstances  and
classes  of cases the preventive  detention  exceeds   three
months,  the absence of an advisory board is expressly  per-
mitted
129
by  article 22 (7). Under article 22 (4) it appears  implied
that  a provision for such tribunal is not necessary if  the
detention  is  for less than three months.   As  regards  an
opportunity to be heard, there is no absolute natural  right
recognised  in respect of oral representation.  It has  been
held  to depend on the nature of the tribunal. The right  to
make  a  representation is affirmed by the  Constitution  in
article  22 (5) and finds a place in the impugned Act.   The
right to an orderly course of procedure to the extent it  is
guaranteed  by article 22 (4) read with article 22 (7)  (c),
and  by  article  22  (7) (a) and (b), has  also  been  thus
provided   in  the  Act.   It seems to me therefore that the
petitioner's contentions even on these points fail.
    Section  14 was strongly attacked on the ground that  it
violated  all  principles of natural justice  and  even  in-
fringed  the right given by article 22 (5) of the  Constitu-
tion.  It runs as follows:
    "14.  (1) No Court shall, except for the purposes  of  a
prosecution 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  contained
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 representation made,
or the proceedings of an Advisory Board or that part of  the
report of an Advisory Board which is confidential.
    (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):
130
    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."
By  that section the Court is prevented (except for  the
purpose  of punishment for such disclosure) from  being  in-
formed, either by a statement or by leading evidence, of the
substance  of  the grounds conveyed to the  detained  person
under  section  7  on which the order was made,  or  of  any
representation  made  by him against such  order.   It  also
prevents  the Court from calling upon any public officer  to
disclose the substance of those grounds or from the  produc-
tion  of  the proceedings or report  of  the.advisory  board
which  may  be declared confidential.  It is clear  that  if
this  provision is permitted to stand the Court can have  no
material  before  it to determine whether the  detention  is
proper or not.  I do not mean whether the grounds are suffi-
cient or not.  It even prevents the Court from  ascertaining
whether the alleged grounds of detention have anything to do
with  the  circumstances or class or classes of  cases  men-
tioned  in section 12 (1) (a) or (b). In  Machindar  Shivaji
Mahar  v.  The King (1),  the Federal Court. held  that  the
Court   can  examine  the grounds given  by  the  Government
to  see  if  they  are relevant  to  the  object  which  the
legislation  has in view.  The provisions of article 22  (5)
do  not exclude that right of the Court.  Section 14 of  the
impugned  Act appears to be a drastic provision.  which  re-
quires  considerable support to sustain it in  a  preventive
detention Act.  The learned Attorney-General urged that  the
whole  object of the section was to prevent  ventilation  in
public  of the grounds and the representations, and that  it
was  a  rule  of evidence only which  the  Parliament  could
prescribe.   I  do not agree. This argument is  clearly  not
sustainable on the words of article 22 clauses (5) and  (6).
The  Government  has the right under article  22  (6)not  to
disclose facts which it considers undesirable to disclose in
the  public interest. It does not permit the  Government  to
refrain from disclosing grounds which fall under clause (5).
(1) [1949-50] F.C.R. 827.
131
Therefore,  it  cannot successfully be  contended  that  the
disclosure  of  grounds may be withheld from  the  Court  in
public  interest,  as  a rule of  evidence.   Moreover,  the
position  is made clear by the words of article 22 (5).   It
provides  that the detaining authority shall communicate  to
such detained person the grounds on which the order has been
made.  It is there fore ,essential that the grounds must  be
connected  with the order of preventive detention.  If  they
are not so .connected the requirements of article 22 (5) are
not ,complied with and the detention  order will be invalid.
Therefore, it is open to a detained person to contend before
a  Court that the grounds on which the order' has been  made
have no connection at all with the order, or have no connec-
tion  with  the circumstances or class or classes  of  cases
under which a preventive detention order could be  supported
under section 12. To urge this argument the aggrieved  party
must have a right to intimate to the Court the grounds given
for  the  alleged detention and the representation  made  by
him.  For instance, a person is served with a paper on which
there are written three stanzas of a poem or three alphabets
written  in  three different ways. For the validity  of  the
detention  order it is necessary that the grounds should  be
those  on  which the order has been made.  If  the  detained
person  is  not in a position to put before the  Court  this
paper, the Court will be prevented from considering  whether
the  requirements  of article 22 (5) are complied  with  and
that  is  a right which is guaranteed to every  person.   It
seems  to  me therefore that the provisions .of  section  14
abridge the right given under article 22 (5) and are  there-
fore ultra vires.
It next remains to be considered how far the  invalidity
of  this section affects the rest of the impugned  Act.  The
impugned Act minus this section can remain unaffected.   The
omission  of this section will not change the nature or  the
structure  or the object of the legislation.  Therefore  the
decision that section 14 is ultra vires does not affect  the
validity  of the rest of the Act.  In my  opinion  therefore
Act IV of 1950, except .section 14, is not ultra vires.   It
does not infringe any
132
provisions  of  Part III of the Constitution  and  the  con-
tention of the applicant against the validity of that    Act
except  to  the extent of section 14, fails.   The  petition
therefore fails and is dismissed.
    FAZL ALI J.--The question to be decided in this case  is
whether  'the  Preventive  Detention Act, 1950  (Act  IV  of
1950),  is wholly or in part invalid and whether  the  peti-
tioner who has been detained under that Act is entitled to a
writ  in the nature of habeas corpus on the ground that  his
detention is illegal.  The question being a pure question of
law  can  he decided without referring to a  long  chain  of
facts which are narrated in the petitioner's application  to
this  Court  and  which have a more direct  bearing  on  the
alleged mala fides of the authorities who have detained  him
than on the validity of the Act.
    The Act which is impugned was enacted by the  Parliament
on the 26th February, 1950, and will cease to have effect on
the 1st April, 1951, save as respects. things done or  omit-
ted to be done before that date. The main provisions of  the
Act  are  set  out in sections 7, 8, 9, 10,11,  12  and  14.
Section  a (1) provides that "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 essential
to the community, or
    (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,
133
it is necessary so to do, make an order directing that  such
person be detained."
    Sub-sections  (2)  and  (3) of this  section  empower  a
District  Magistrate, Sub-Divisional Magistrate or the  Com-
missioner  of Police in a Presidency Town to   exercise  the
power  conferred by and make the order contemplated in  sub-
section (1), but with the qualification that any order  made
thereunder  must be reported forthwith to the Government  of
the  State to which the .officer in question is  subordinate
with  the grounds on which the order has been made and  such
other  particulars as in his opinion have a bearing  on  the
necessity for the order.  Section 7 of the Act provides that
the authority making an order of detention shall as soon  as
may  be  communicate to the person detained the  grounds  on
which  the  order has been made and shall  afford  him   the
earliest opportunity of making a representation against  the
order,  in  a case where such ,order has been  made  by  the
Central Government, to that Government, and in a case  where
it has been made by a State Government or an officer  subor-
dinate thereto, to the State Government.  Section 8 provides
that the Central Government and each State Government shall,
whenever  necessary, constitute one or more advisory  boards
for the purposes of the Act, and state the qualifications of
persons  of which the board should consist.  Section 9  pro-
vides that when a detention order has been made with a  view
to preventing a person from acting in any manner prejudicial
to the maintenance of supplies and services essential to the
community  or if it is made in regard to a person who  is  a
foreigner  within the meaning of the Foreigners Act  with  a
view to regulating his continued presence in India or making
arrangements  for his expulsion from India, the  grounds  on
which  the  order has been made and the  representation,  if
any,.  of the person detained shall, within six  weeks  from
the date of detention, be placed 'before an advisory regard.
It  will be noticed that this section does not provide  that
the  cases of persons who are detained under section  3  (1)
(a)  (i)  and (ii) will also be placed before  the  advisory