dedol-hf/india-case-legal-rag huggingface dataset:
authority when it made the order. If the grounds were  vague
it  is the vague grounds that must be communicated,  for  it
was  upon those vague grounds that the order had been  made.
That  is the express provision of the first part  of  clause
(5).   This being the express requirement,  the  implication
that  the grounds communicated must be sufficient to  enable
the detenu to make a representation cannot be read into  the
clause, for that will militate against the express  require-
ment. If the order had been made on vague grounds but
(1) [1950] S.C. R. 88.
207
the  authority  is  to  communicate  precise and well-formu-
lated  grounds which will be sufficient for   the detenu  to
make a representation, then the communication will not be of
grounds on which the order was  made  but  of something more
than  what is   expressly  required.  The express  provision
must exclude such an inconsistent implied provision.  Again,
clause  (6)of  article 22 gives the authority the  right  to
claim privilege against disclosure of facts in public inter-
est.    Non-disclosure of  facts  will necessarily make  the
grounds,  as  communicated, extremely vague and  devoid   of
particulars.   If  the construction of clause (5)  which  is
contended for by the detenu's counsel were correct, then the
vagueness  of the grounds resulting from the  non-disclosure
of  facts  under clause     will entitle the  detenu  to  be
released, for that vagueness also will render the making  of
a  representation impossible or difficult.  That  will  mean
that the claim of privilege given to the authority by clause
(6) of article 22 is wholly meaningless and ineffective, and
will  defeat its very purpose, for the privilege  cannot  be
claimed  except at the peril of releasing the detenu.  Obvi-
ously that cannot be the intention.  It must, therefore,  be
held  that the vagueness of grounds resulting from  non-dis-
closure of facts under clause (6) will not  invalidate   the
order of detention, which was initially valid, on the ground
that  no  representation can be made on the  basis  of  such
vague  grounds.   In that case by claiming  privilege  under
clause  (6) the authority can frustrate the claim of  justi-
ciability  of the sufficiency of the grounds.  Further,  why
should  the  vagueness of grounds  otherwise  brought  about
stand  on a different footing ? Clause (5) cannot  mean  one
thing  when  the  privilege is claimed and  mean  quite  the
opposite  thing  when  no such privilege  is  claimed  under
clause  (6).   The initial order is  not  justiciable.   The
claim  of  privilege is not justiciable. Why  should  it  be
assumed  that the sufficiency of grounds for the purpose  of
making  a representation was intended to be justiciable ?  I
see no logical reason
27
208
for making an assumption which will introduce an      objec-
tive   test  in  a matter  which is prima facie     intended
to be purely subjective.
      The  argument is then re-stated in the following  fur-
ther  modified form.  Clause (5) of article 22  imposes  two
obligations  on the authority making an order of  detention,
namely,  (i)  that the authority shall, as soon as  may  be,
communicate  the grounds on which the order has  been  made,
and (ii) that the authority shall afford the earliest oppor-
tunity  to the detenu to make a representation  against  the
order.   If the order was made as a result  of  satisfaction
derived-in  good faith but upon grounds which may be  vague,
the order will be perfectly good and cannot be challenged in
any court.  Communication of such grounds, even if they  are
vague,  will satisfy the first obligation imposed  upon  the
authority.  Under the latter part of clause (5) the authori-
ty  is  also  under the obligation to  afford  the  earliest
opportunity to the detenu to make a representation.  If  the
grounds  on which the order has been made were  vague,  then
the  second  part of clause (5), independently  and  without
reference to the first part of clause (5), impliedly imposes
on  the authority  an  obligation  to rectify the defect  of
vagueness  by  supplying  particulars so as  to  enable  the
detenu  to make a representation. Supplying of  particulars,
the  argument concludes, is implicit in the second  part  of
clause  (5), for without such particulars the detenu is  not
afforded  the  opportunity to make a representation.   I  am
unable  to  accept this line of argument.  Under  the  first
part  of clause (5) the grounds on which the order has  been
made  have to be supplied 'as soon as may be.'  The  measure
of  time  indicated by the words 'as soon as  may  be'  must
obviously  run  from the date of detention.   Likewise,  the
latter part of clause (5) requires affording the detenu  the
earliest  opportunity  to make a representation.  From  what
terminus a quo is the period indicated by the phrase "earli-
est  opportunity "to begin to run ? If that is also  to  run
from  the date of the detention, then the two periods  under
the two parts of clause (5),
209
must  necessarily coincide and, therefore, the  question  of
supplying further particulars after the grounds are supplied
cannot arise.  On the other hand, the natural meaning of the
words of the latter part of clause (5), to my mind, is  that
the period connoted by the phrase the "earliest opportunity"
begins to run from the time the detenu expresses his  desire
or  intention  to make a representation.  The  making  of  a
representation  is the right of the detenu.  To make or  not
to  make a representation is his choice.  Therefore,  it  is
only when he decides to make a representation and  expresses
his desire or intention to make a representation  that   the
earliest   opportunity  is to be afforded to him to make the
desired or  intended representation.  Now, if the time is to
run after the expression of desire or intention on the  part
of  the detenu to make a representation, then  the  earliest
opportunity  to  be  afforded to the detenu  can  only  mean
affording  him  all  physical facilities to  carry  out  his
desire or intention, for the detenu has decided to make  his
representation  without any further particulars.   According
to the language used in the latter part of clause (5), there
is no express provision for supplying particulars.   Suppose
the  grounds  on  which the order was made  and  which  were
communicated  to the detenu under the first part were  quite
precise and sufficient to enable the detenu to make a repre-
sentation,  then affording him the earliest  opportunity  to
make the representation can only mean giving him all  physi-
cal facilities to do so, e.g., by supplying him with  paper,
pen and ink and when the representation has been drawn up by
him,  by  forwarding the same with due despatch. In  such  a
case  there is no question of supplying further  and  better
particulars.  Suppose, again, that the grounds on which  the
order has been made and which have been communicated to  the
detenu are regarded by the authority to be quite precise and
sufficient for making a representation, is the authority  to
anticipate  that the detenu may find these grounds  insuffi-
cient  or  that  being moved in that behalf  the  Court  may
consider them insufficient and
210
then,  as soon as the detenu expresses his desire or  inten-
tion  to  make a representation. is the  authority  to  keep
quiet  and take the risk of the court releasing  the  detenu
for the vagueness of the grounds or is he to tell the detenu
"just  wait  a  little; I think the  grounds  which  I  have
communicated  to you are quite precise and sufficient;  lest
you or the court find the grounds insufficient for making  a
representation,  I shall supply you with further and  better
particulars  so as to enable you to make the  representation
?" The position thus stated is unreal on the face of it.  In
my  opinion,  on a plain reading of clause (5) there  is  no
justification  for assuming that a second  communication  of
particulars  is contemplated either under the first part  or
under  the  second  part  of clause  (5).   This  does  not,
however, mean that the authority may not supply  particulars
either  suo  motu or on the application of the  detenu.  All
that  I  say is that clause (5) imposes  no   constitutional
obligation   on the authority  to  supply particulars so  as
to  remove  the vagueness of the grounds or  to  enable  the
detenu  to  make  a  representation,   and  non-supply    of
further  particulars does not constitute an  infraction   of
any fundamental right.
    It  is said that clause (5) of article 22  construed  in
the  way suggested above, would render that clause  nugatory
for  it will then really guarantee no fundamental  right  at
all. I respectfully differ from this view for the  criticism
does not appear to me to be well founded.  Communication  of
the grounds,  even  if vague, will none the less be  helpful
to  the detenu in the several ways I have already  mentioned
and,  therefore, the right to have the grounds on which  the
order has been made communicated to him is a valuable  right
which has been recognised as a fundamental right.  Likewise,
the right to make a representation is a valuable right which
is  guaranteed  by the Constitution.   These  rights  remain
unaffected.  If the the provisions of clause (5) of  article
22  of our Constitution on a correct interpretation  thereof
are found to be inadequate for the protection of the liberty
of
211
the detenus it is their misfortune.  The Constitution  which
the people have given unto themselves is the supreme law and
must  be  upheld and obeyed whether' or not  one  likes  its
provisions,  inhibitions and necessary   implications.   The
court can only draw  the, attention of the Parliament to the
lacuna or defect, if any, in the Constitution and in the Act
so that the lacuna may be supplied or the defect remedied in
the constitutional way.
    Our attention has been drawn to a number of cases  where
under  various provincial laws and before  the  Constitution
the  different High Courts have directed the release of  the
detenu on the basis of the vagueness of the grounds.   Those
decisions  are, however, distinguishable because  they  were
based  on legislation which required the  communication  not
only of grounds but also of particulars.  The omission  from
our  Constitution  of the provision for  communicating   the
particulars  in  addition to the grounds which  were  to  be
found  in those laws is significant, for it may be  deliber-
ate.   Apart  from  this, however, those  decisions  do  not
appear to me to have any bearing on the correct  interpreta-
tion of our Constitution or of the Preventive Detention Act.
In Iswar Das v. The State(1) the question was not raised  or
argued as it was made clear in the judgment itself.
    In view of what I have stated above, I am of the opinion
that  as the grounds originally communicated to  the  detenu
were  relevant to the objects which the Act had in view  and
as  there  is no proof of mala fides  the  obligations  cast
upon  the  authorities  under article 22 (5) which have been
reproduced in section 7 of the Preventive Detention Act have
been   fully  complied with.  Even according  to  the  views
expressed  by the majority of my colleagues I would be  pre-
pared  to  hold that the particulars  subsequently  supplied
along with the grounds originally supplied fully enable  the
detenu  to make his representation. In my opinion there  has
been  no  contravention  of the fundamental  rights  of  the
detenu. I would, therefore,
(1) Not reported.
212
allow  this  appeal and reverse the decision of  the  Bombay
High Court.
                                  Appeal allowed.
Agent for the appellant: P.A. Mehta.
  Agent for the respondent: V.P.K. Nambiyar.
PETITIONER:
KESHAVAN MADHAVA MENON
        Vs.
RESPONDENT:
THE STATE OF BOMBAY.
DATE OF JUDGMENT:
22/01/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
MUKHERJEA, B.K.
CITATION:
 1951 AIR  128            1951 SCR  228
 CITATOR INFO :
 MV         1951 SC 253  (30,31)
 F          1952 SC 235  (3,5,9,23,24,25)
 E          1952 SC 339  (15)
R          1953 SC 156  (16)
 D          1953 SC 394  (8)
 RF         1954 SC 158  (13)
 R          1955 SC  13  (14)
 R          1955 SC 123  (34,50,51,65)
 R          1955 SC 781  (9)
 RF         1956 SC 503  (13)
 F          1957 SC 397  (43)
 F          1957 SC 540  (25)
 F          1958 SC  86  (22)
 D          1958 SC 468  (40)
 E          1959 SC 149  (45,60,92,93)
 F          1959 SC 648  (19,21,23,25,33)
 R          1960 SC 862  (15)
 R          1962 SC1737  (14)
 RF         1963 SC1019  (15,23)
D          1964 SC1284  (18,20)
 RF         1970 SC 470  (26)
 R          1972 SC 425  (17)
 RF         1972 SC2205  (26)
 RF         1973 SC1461  (26)
 RF         1974 SC1300  (28,30,32,33)
 RF         1979 SC  25  (38,40)
 RF         1979 SC 602  (6)
ACT:
    Constitution of India, 1950, Art. 13 (1)--Whether retro-
spective  --Prosecution  for contravention of  Indian  Press
(Emergency  Powers)  Act,  1931,  ss.  15,  18--Constitution
passed  during  pendency of  prosecution--Laws  inconsistent
with  fundamental rights declared  void-Whether  prosecution
can  be  continued--Absence  of  provision  saving  pending'
proceedings--Effect   of--Expiry   of   temporary  laws   or
repeal of laws, and laws becoming void by statutory declara-
tion-Difference--Interpretation--Spirit of the Constitution.
HEADNOTE:
    Held by the Court (KANIA C.J.,  PATANJALI  SASTRI,  MEHR
CHAND  MAHAJAN, DAS and CHANDRASEKHARA AIYAR  JJ.--FAZL  ALI
and MUKHERJEA JJ., dissenting)--Article 13(1) of the  Indian
Constitution  does not make existing laws which  are  incon-
sistent  with  fundamental rights void ab initio,  but  only
renders  such laws ineffectual and void with respect to  the
exercise of fundamental rights on and after the date of  the
commencement  of the Constitution.  It has no  retrospective
effect,  and  if therefore an act was done before  the  com-
mencement  of the new Constitution in contravention  of  the
provisions  of any law which was a valid law at the time  of
the  commission of the act, a prosecution for such  an  act,
which was commenced before the Constitution came into  force
can be proceeded with and the accused punished according  to
that  law. even after the commencement of the new  Constitu-
tion.
On the expiry of a temporary statute no further proceed-
ings  can be taken under it unless the statute itself  saved
pending  proceedings  and if an offence had  been  committed
under a temporary statute and proceedings were initiated but
the offender had not been prosecuted and punished before the
expiry  of  the  statute, then in the absence  of  a  saving
clause  the  pending prosecution cannot  be  proceeded  with
after  the  expiry  of the statute by efflux  of  time.  The
effect  of  Art. 13(1) is quite different from that  of  the
expiry of a temporary statute or the repeal of a statute  by
a subsequent statute.
    A court of law has to gather the spirit of the Constitu-
tion  from the language/of the Constitution.  What  one  may
believe or wish to be the spirit of the Constitution  cannot
prevail if the language of the Constitution does not support
that view.
229
    Per  FAZL  ALI and MUKHERJEA  JJ.  (contra)-Though  Art.
13(1) has no retrospective operation, and transactions which
are  past  and closed and rights which have  already  vested
will remain untouched, with regard to inchoate matters which
were still not determined  when the Constitution  came  into
force, and as regards proceedings which were pending at  the
time  of  the enforcement of the Constitution  and  not  yet
prosecuted to a final judgment, a law which has become  void
under  Art.  13(1) of the Constitution  cannot  be  applied.
What has to be looked at is the state of the law at the time
when the question arises as to whether a person has  commit-
ted  an offence, and if it is found that the law which  made
the  act  an offence has become completely  ineffectual  and
nugatory,  then neither can a charge be framed nor  can  the
accused person be convicted.
Judgment of the Bombay High Court affirmed.
JUDGMENT:
    APPELLATE JURISDICTION: Appeal under Art. 132(1) of  the
Constitution  from  a judgment and order dated  12th  April,
1950,  of  the High Court of Judicature  at  Bombay  (Chagla
C.J., Bavdekar and  Shah JJ.): Case No. I X of 1950.
A.S.R. Chari, for the appellant.
    M.C.   Setalvad,   Attorney-General for   India  (G.  N.
Joshi, with him) for the respondent.
    1951.  Jan.  22. The judgment of Kania  C.J.,  Patanjali
Sastri  J. Das J. and Chandrasekhara Aiyar J. was  delivered
by  Das  J. Mahajan J. and Fazl Ali  J.  delivered  separate
judgments.  Mukherjea J. agreed with Fazl Ali J.
    DAs J.--At all material times the petitioner, who is the
appellant before us, was the Secretary of People's  Publish-
ing  House, Ltd., a  company  incorporated under the  Indian
Companies Act with its registered office at 190-B,  Khetwadi
Main  Road  in  Bombay.  In September,  1949,   a   pamphlet
entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged
to  have been published in Bombay by the petitioner  as  the
secretary  of that company.  Learned counsel for  the  peti-
tioner  states that the pamphlet was published as  a  "book"
within  the meaning of section 1 of the Press and  Registra-
tion  of Books Act (XXV of 1867) and that the provisions  of
that Act had been duly complied
230
with.  The Bombay Government authorities, however, took  the
view that the pamphlet was a "news sheet" within the meaning
of section 2 (6) of the Indian Press (Emergency Powers) Act,
1931, and that as it had been published without the authori-
ty  required by section 15 (1) of that Act,  the  petitioner
had committed an offence punishable under section 18 (1)  of
the  same Act. A prosecution under that Act was  accordingly
started   against the petitioner in the Court of  the  Chief
Presidency Magistrate, Bombay, and  was  registered as  Case
No.  1102/P of 1949. During the pendency of the  proceedings
the  Constitution  of India came into force on  January  26,
1950.  On  March  3, 1950, the petitioner  filed  a  written
statement  submitting,  inter alia, that the  definition  of
"news  sheet" as given in section 2 (6) of the Indian  Press
(Emergency Powers) Act, 1931, and sections 15 and 18 thereof
were  ultra vires and void in view of article 19(1)(a)  read
with  article 13 and that the hearing of the case should  be
stayed  till  the High Court decided that question  of  law.
This  was followed up by a petition filed in the High  Court
on  March  7, 1950, under article 228 of  the  Constitution,
praying  that the record of Case No. 1102/P of 1949 be  sent
for,  that it be declared that sections 15 and 18 read  with
section  2 (6) and (10), in so far as they create  liability
for  restrictive measure for a citizen, are ultra  vires  of
article  19 (1) (a)and are, therefore, void and  inoperative
and that the petitioner be ordered to be acquitted.   During
the  pendency of this petition the Chief  Presidency  Magis-
trate  on March 23, 1950, framed a charge against the  peti-
tioner under section 18 of the Press (Emergency Powers) Act,
1931.
    The  petition under article 228 was heard on  April  12,
1950,  by  a Bench of the Bombay High  Court  consisting  of
Chagla  C.J.  and Bavdekar and Shah JJ. Two  questions  were
raised before the Bench, namely---
(1)  Whether  sections 15 (1) and 18 (1) read  with  the
definitions  contained in sections 2 (6) and 2 (.10) of  the
Indian Press (Emergency Powers) Act, 1931, were
231
inconsistent with article 19 (1) (a) read with clause (2) of
that article ? and
    (2)  Assuming that they were inconsistent,  whether  the
proceedings  commenced  under  section 18 (1)  of  that  Act
before the commencement of the Constitution could  neverthe-
less be proceeded with ?
The High Court considered it unnecessary to deal with or
decide  the first question and disposed of  the  application
only  on the second question.  The High Court took the  view
that the word "void" was used in article 13 (1) in the sense
of  "repealed" and that consequently it attracted section  6
of  the  General Clauses Act, which Act by article  367  was
made applicable for the interpretation of the  Constitution.
The  High  Court,  therefore, reached  the  conclusion  that
proceedings   under the  Indian  Press   (Emergency  Powers)
Act,  1931, which were pending at the date of the  commence-
ment of the Constitution were not affected, even if the  Act
were  inconsistent with the fundamental rights conferred  by
article  19 (1)(a)and as such became void under  article  13
(1)  of the Constitution after January 26, 1950.   The  High
Court  accordingly answered the second question in  the  af-
firmative  and  dismissed  the   petitioner's   application.
The  petitioner has now come up on appeal before us  on  the
strength  of a certificate granted by the High  Court  under
article 132 (1) of the Constitution.
    Learned  counsel  appearing in support  of  this  appeal
urged  that the Indian Press (Emergency Powers)  Act,  1931,
was  one  of the many repressive laws enacted  by  an  alien
Government  with a view to stifle the liberty of the  Indian
subjects  and particularly of the Indian Press;  that,  with
the  advent  of independence the people of  India  began  to
breathe freely and by the Constitution which they gave  unto
themselves  they  took care to guarantee to  themselves  the
fundamental rights of free citizens of a democratic republic
and  that article 13 (1) of that Constitution brushed  aside
all vestiges of subordination which the tyranny of the alien
rulers had imposed upon them and declared all
232
laws inconsistent with the fundamental rights to be void  as
if  they had never been passed and had never   existed.   It
was,  therefore,  against the spirit  of  the  Constitution,
argued  the  learned counsel, that a free citizen  of  India
should  still continue to be persecuted under such a  retro-
grade  law  which, being inconsistent with  the  fundamental
rights,  must be declared to be void. Learned counsel  urged
that  it  was  not necessary for him to  contend  that  such
inconsistent laws became void ab initio or that all past and
closed transactions could be reopened but he contended  that
on  and  from January 26, 1950, when the  Constitution  came
into  force such inconsistent laws which became  void  could
not be looked at for any purpose and far less could they  be
utilised for the purpose of framing a charge or punishing  a
free citizen.  As the void law cannot be utilised any  long-
er, the pending prosecutions, according to learned  counsel,
must  fall  to the ground.  To  permit  pending  proceedings
under  a law which, after the commencement of the  Constitu-
tion had become void, to proceed further, after the  Consti-
tution  has taken effect, is to prolong the efficacy of  the
law notwithstanding that it has become void on and from  the
date  the Constitution came into force and that  is  against
the spirit of the Constitution.
    An argument founded on what is claimed to be the  spirit
of  the  Constitution  is always attractive, for  it  has  a
powerful appeal to sentiment and emotion; but a court of law
has  to gather the spirit of the Constitution from the  lan-
guage of the Constitution.  What one may believe or think to
be  the  spirit of the Constitution cannot  prevail  if  the
language  of  the Constitution does not support  that  view.
Article  372 (2) gives power to the President to  adapt  and
modify  existing laws by way of repeal or amendment.   There
is  nothing  to prevent the President, in  exercise  of  the
powers conferred on him by that article, from repealing, say
the whole or any part of the Indian Press (Emergency Powers)
Act,  1931. If the President does so, then such repeal  will
at  once  attract section 6 of the General Clauses  Act.  In
such a situation all prosecutions under
233