dedol-hf/india-case-legal-rag huggingface dataset:
of  article 22 is not a tribunal intended to deal  with  the
issue of justification of detention.  Is that view correct?
    It was argued that the words "sufficient cause for  such
detention" in sub-clause (a) of clause (4) had reference  to
the  detention beyond three months mentioned in  clause  (4)
and  that  this view was supported by the language  of  sub-
clause (a) of clause (7) whereby Parliament is authorised to
prescribe  the  circumstances under'which and the  class  or
classes  of  cases in which a person may be detained  for  a
period  longer than three months without the opinion  of  an
advisory board.  In other words, learned counsel submitted,
210
the  combined  effect  of clauses (4) and (7)  was  that  no
person  could  be detained for a period  over  three  months
without  obtaining  the opinion of an  advisory  board  that
there  was  sufficient cause for detention  for  the  longer
period, except in cases where Parliament passed a law autho-
rising detention for such period even without the opinion of
an  advisory board. Thus, these two clauses  were  concerned
solely with the duration of the preventive detention, and so
was the advisory board which those clauses provided for that
purpose. I am unable to accept this view.  I am inclined  to
think  that  the words "such detention"  in  sub-clause  (a)
refer  back to the preventive detention mentioned in  clause
(4)  and  not to detention for a longer  period  than  three
months.   An  advisory board, composed as it has  to  be  of
Judges  or lawyers, would hardly be in a position  to  judge
how  long  a  person under preventive  detention,  say,  for
reasons  connected with defence, should be  detained.   That
must be a matter for the executive authorities, the  Depart-
ment of Defence, to determine, as they alone are responsible
for  the defence of the country and have the necessary  data
for  taking a decision on the point.  All that  an  advisory
board can reasonably be asked to do, as a safeguard  against
the  misuse of the power, is to judge whether the  detention
is justified and not arbitrary or mala fide.  The -fact that
the advisory board is required to make its report before the
expiry of three months and so could submit it only a day  or
two  earlier cannot legitimately lead to an  inference  that
the board was solely concerned with the issue whether or not
the  detention should continue beyond that  period.   Before
any such tribunal could send in its report a reasonable time
must  elapse, as the grounds have to be communicated to  the
person  detained, he has to make his representation  to  the
detaining  authority which has got to be placed  before  the
board through the appropriate departmental channel.  Each of
these  steps  may, in the course Of official  routine,  take
some  time, and 'three months' period might well  have  been
thought a reasonable period to allow before the board  could
be-required to submit its report.
211
    Assuming,  however, that the words "such detention"  had
reference  to the period of detention, there is no  apparent
reason  for confining the enquiry by the advisory  board  to
the  sole  issue  of duration beyond  three  months  without
reference  to the question as to whether the  detention  was
justified or not.  Indeed, if is difficult to conceive how a
tribunal  could  fairly  judge whether a  person  should  be
detained for more than three months without at the same time
considering  whether  there  was sufficient  cause  for  the
detention  at all.  I am of opinion that the advisory  board
referred  to in clause (4) is the machinery devised  by  the
Constitution  for reviewing orders for preventive  detention
in  certain cases on a consideration of the  representations
made  by  the persons detained.  This is the view  on  which
Parliament  has  proceeded in enacting the impugned  Act  as
will be seen from sections 9 and 10 thereof, and I think  it
is the correct view.  It follows that the petitioner  cannot
claim to have his case judged by any other impartial  tribu-
nal by virtue of article 21 or otherwise.
    Mr. Nambiar, however, objected that, on this view, a law
could authorise preventive detention for three months  with-
out  providing  for  review by any tribunal,  and  for  even
longer  periods if Parliament passed an Act such as is  con-
templated in sub-clause (a) of clause (7).  That may be  so,
but, however deplorable such a result may be from the  point
of view of the person detained, there could be no remedy if,
on a proper construction of clauses (4) and (7), the Consti-
tution  is  found  to afford no higher  protection  for  the
personal liberty of the individual.
Turning  next  to the provisions of  the  impugned  Act,
whose  constitutional  validity was challenged, it  will  be
necessary to consider only those provisions which affect the
petitioner before us.  In the first place, it was  contended
that section 3, which empowers the Central Government or the
State  Government to detain any person if it is  "satisfied"
that it is necessary to do so with a view to preventing  him
from  acting in any manner prejudicial to (among other
212
things)  the  security of the State or  the  maintenance  of
public  order, cannot be said to comply with  the  procedure
established  by law, as the section prescribes no  objective
and  ascertainable standard of conduct to which it  will  be
possible to conform, but leaves it to the will and  pleasure
of  the Government concerned to make an order of  detention.
TIm  argument proceeds on the assumption that the  procedure
established by law is equivalent to the due process of  law.
I  have  already endeavoured to show that it is  not   Apart
from  this, the argument overlooks that for the purposes  of
preventive detention it would be difficult, if not  impossi-
ble  to  lay  down objective rules  of  conduct  failure  to
conform to which should lead to such detention.  As tim very
term implies, the detention in such cases is effected with a
view  to prevent the person concerned from  acting  prejudi-
cially  to certain objects which the  legislation  providing
for such detention has in view.  Nor would it be practicable
to indicate or enumerate in advance what acts or classes  of
acts  would be regarded as prejudicial.  The  responsibility
for the security of the State and the maintenance of  public
order  etc. having been laid on the executive Government  it
must  naturally be left to that Government to  exercise  the
power of preventive detention whenever they think the  occa-
sion demands it.
    Section  12 came in for a good deal of  criticism.  That
section,   which  governs the  duration  of  thepetitioner's
detention reads as follows :--
    "Duration  of  detention in certain  cases.--Any  person
detained  in any of the following classes of cases or  under
any  of the following circumstances may be detained  without
obtaining  the  opinion of an Advisory Board  for  a  period
longer  than three months, but not exceeding one  year  from
the  date  of his detention, namely, where such  person  has
been  detained with a view to preventing him from acting  in
any manner prejudicial to:--
    (a)  the defence of India, relations of India with  for-
eign powers or the security of India; or
    (b) the security of a State of the maintenance of public
order.
213
    (2) The case of every person detained under a  detention
order  to  which  the provisions of  sub-section  (1)  apply
shall,  within a period of six months from the date  of  his
detention,  be  reviewed  where the order was  made  by  the
Central  Government or a State Government, by  such  Govern-
ment, and where the order was made by any officer  specified
in  sub-section (2)of section 3, by the State Government  to
which  such officer is subordinate, in consultation  with  a
person who is, or has been, or is qualified to be  appointed
as  a Judge of a High Court nominated in that behalf by  the
Central Government or the State Government, as the case  may
be."
    It was urged that this did not comply with the  require-
ments of clause (7) of article 22 as it merely repeated  the
"matters" or legislative topics mentioned in Entry 9 of List
I  and  Entry 3 of  List III of the Seventh Schedule to  the
Constitution.  What Parliament has to do under clause(7)  of
article  22 is to prescribe "the circumstances  under  which
and  the   class  or  classes  of cases  in which" a  person
may   be  detained  for a period  longer than  three  months
without obtaining the opinion of an advisory board.  It  was
said  that  clause (4) (a) provided for  ordinary  cases  of
preventive detention Where such detention could not continue
beyond  three  months without obtaining the  opinion  of  an
advisory  board,  whereas clause (7) (a) made provision  for
special cases of detention for more than three months  with-
out  the  safeguard  of the advisory  board's  opinion,  for
aggravated  forms of prejudicial conduct.  In  other  words,
clause (4) (a) laid down the rule and clause (7) (a) enacted
an exception.  It was therefore necessary for Parliarnent to
indicate  to  the detaining authority for its  guidance  the
more  aggravated  forms of prejudicial  activity,  and  mere
mention of the subjects in respect  of which  Parliament  is
authorised  under  the  legislative lists to  make  laws  in
respect  of  preventive detention could  hardly  afford  any
guidance  to  such authority and should not be  regarded  as
sufficient  compliance with the requirements of clause  (7).
There is a two-fold fallacy in
214
this argument.   In the first place, the suggested  correla-
tion between clause (4) (a) and clause (7) (a) as enacting a
rule  and  an  exception is, as a  matter  of  construction,
without foundation.  Reading clauses (4) and (7) together it
is  reasonably clear that preventive  detention  could  last
longer  in two cases: (1) where the opinion of  an  advisory
board  is obtained,  subject however to a prescribed  period
[sub-clause  (a)of  clause (4)] and (2) where  a  person  is
detained  under a law made by Parliament  under  sub-clauses
(a)  and (b) of clause (7) [sub-clause (b) of  clause  (4)].
These are two distinct and independent provisions.   It   is
significant that sub-clause (b) of clause (4) is not  worded
as  a proviso or an exception to sub-clause (a) of the  same
clause  as it would have been if it was intended to  operate
as  such.  The attempt to correlate clause (4)(a)and  clause
(7)  (a) as a rule and an exception respectively is  opposed
both to the language and the structure of those clauses.
     'Secondly,  the argument loses sight of the  fact  that
clause (7) deals with preventive detention which is a purely
precautionary measure which "must necessarily proceed in all
cases,  to  some  extent, on suspicion  or  anticipation  as
distinct from proof" [ per Lord Atkinson in Rex v.  Halliday
(1)  ]. The remarks I have' already made with  reference  to
the  absence of any objective rules of conduct in section  3
of the impugned Act apply also to this criticism of  section
12. It would be difficult, if not impracticable, to  mention
the variouscircumstances, or to enumerate the various class-
es  of  cases exhaustively in which a person should  be  de-
tained  for more than three months for preventive  purposes,
except  in broad outline.  Suppose a person belongs  to.  an
organization  pledged to violent and subversive activity  as
its  policy.  Beyond his membership of theparty  the  person
might have done nothing until he1 was arrested and detained.
But if released he might indulge in anything from the  mild-
est  form of prejudicial activity, like sticking  an  objec-
tionable handbill on a hoarding, to the most outrageous acts
of sabotage.
(1) L.R. 1917 A.C. 260, 275.
215
How  could the insertion in section 12 of a long  series  of
categories of aggravated forms of prejudicial activities, or
the  enumeration of the various circumstances in which  such
activities  are likely to be indulged in, be of any  assist-
ance  to the detaining authority in determining whether  the
person concerned should be detained for three months or  for
a  longer period ?  All that would be necessary  and  suffi-
cient for him to know for coming to a decision on the  point
is  that the person is a member of such an organisation  and
will probably engage in subversive activities prejudicial to
the security of the State or the maintenance of public order
or,  in other words, he belongs to class (b) in section  12.
While  enumeration  and classification in detail  would  un-
doubtedly help in grading punishment for offences committed,
they  would  not be of much use in fixing  the  duration  of
preventive  detention.   Sufficient guidance in  such  cases
could  be given by broadly indicating the general nature  of
the prejudicial activity which a person is likely to indulge
in,  and that in effect is what Parliament has done in  sec-
tion  12.  Reference was made in this connection to Rule  34
of  the Defence of India Rules framed under the  Defence  of
India  Act,  1939,  where "prejudicial act"  is  defined  by
enumeration.  But it was also for the purpose of prohibiting
such acts [ Rule 38 sub-rule (1) ] and making them  offences
(sub-rule 5). And even there, the definition had to end in a
residuary  clause sweeping in acts likely "to prejudice  the
efficient  prosecution  of the war, the defence  of  British
India or, the public safety or interest." In Lists I and III
of  the Seventh Schedule to the Constitution six topics  are
mentioned  in  respect of which Parliament could  make  laws
providing  for preventive detention, and section 12  of  the
impugned  Act mentions five of them as being the classes  of
cases  or  the circumstances in which  longer  detention  is
authorised.    I fail to see why this could not be  regarded
as a broad classification of cases or a broad description of
circumstances where Parliament considers longer detention to
be justifiable.  A class can well be designated with  refer-
ence to the end which one desires to secure, and the matters
referred to as classes (a)
216
and  (b) of sub-section (1) of section 12 being clearly  the
objects  which Parliament desired to secure by enacting  the
section, it seems to me that the classification with  refer-
ence  to  such general aims does not contravene  article  22
(7).
 It was argued that Parliament did not, in enacting  section
12,  perform its duty of prescribing both the  circumstances
and  the class or classes of cases where  detention  without
obtaining   the   advisory board's opinion could  be  for  a
period longer than three months.  The use of the disjunctive
"or"  between the word "circumstances" and the words  "class
or classes of cases"  showed,  it was said,  that Parliament
proceeded on the view that it need not prescribe both.  This
was  in contravention of article 22 (7) which used the  con-
junctive "and" between those words. There is  no  substance-
in   this  objection.   As I read  article 22 (7)  it  means
that  Parliament may prescribe either the  circumstances  or
the   classes of cases or both,   and in  enacting   section
12  Parliament evidently regarded the matters  mentioned  in
clause (a) and (b) of sub-section (1) as sufficiently indic-
ative both of the Circumstances under which and the  classes
in  which a person could be detained for the longer  period.
To  say,  for instance, that persons who are likely  to  act
prejudicially to the defence of India may be detained beyond
three months is at once to "prescribe a class of persons  in
which  and the circumstances under which"  a person  may  be
detained for the longer period. In other words, the  classi-
fication  itself  may be such as to amount to  a  sufficient
description of the circumstances for purposes of clause (7).
The  circumstances which would justify precautionary  deten-
tion  beyond  three months without recourse to  an  advisory
board  must be far too numerous for anything approaching  an
exhaustive  enumeration, and it can, in my judgment,  be  no
objection  to  the validity of section 12  that  no  circum-
stances are mentioned apart from the matters referred to  in
clauses (a) and (b) of sub-section (1).  It would indeed  be
singular for the Court to strike down a parliamentary enact-
ment because in its opinion a
217
certain  classification  therein made is  imperfect  or  the
mention  of  certain circumstances is unspecific  or  inade-
quate.
    Lastly,  Mr.  Nambiar turned his attack  on  section  14
which  prohibits the disclosure of the grounds of  detention
communicated  to the person detained and of the  representa-
tion made by him against the order of detention, and  debars
the  Court from allowing such disclosure to be  made  except
for  purposes of a prosecution punishable under  sub-section
(2) which makes it an offence for any person to disclose  or
publish  such  grounds   or   representation   without   the
previous  authorisation  of the Central  Government  or  the
State  Government as the case may be.  The  petitioner  com-
plains  that this provision nullifies in effect  the  rights
conferred  upon  him under clause (5) of  article  22  which
entitles  him to have the grounds of his detention  communi-
cated to him and to make a representation against the order.
If the grounds are too vague to enable him to make any  such
representation, or if they are altogether irrelevant to  the
object  of  his detention, or are such as to show  that  his
detention  is  not bona fide, he has the  further  right  of
moving this Court and this remedy is also guaranteed to  him
under article 32. These rights and remedies, the  petitioner
submits, cannot be effectively excercised, if he is prevent-
ed  on pain of prosecution, from disclosing the  grounds  to
the  Court.  There is great force in this  contention.   All
that  the Attorney-General could say in answer was  that  if
the  other provisions of the Act were held to be  valid,  it
would not be open to the Court to examine the sufficiency of
the grounds on which the executive authority was "satisfied"
that  detention  was necessary, as laid  down  in  Machindar
Shivaji  Mahar v. The King (1), and so the petitioner  could
not complain of any infringement of his rights by reason  of
section  14  which  enacted only a rule  of  evidence.   The
argument  overlooks that it was recognised in  the  decision
referred  to  above that it would be open to  the  Court  to
examine  the  grounds of detention in order to  see  whether
they were relevant to the object which the legislature had
(1) [1949] F.C.R. 827.
218
in  view,  such  as, for instance, the  prevention  of  acts
prejudicial to public safety and tranquillity, or were  such
as to show that the detention was not bona fide. An examina-
tion of the grounds for these purposes is made impossible by
section  14, and the protection afforded by article  22  (5)
and  article  32 is thereby rendered nugatory.   It  follows
that section 14 contravenes the provisions of article 22 (5)
and article 32 in so far as it prohibits the person detained
from  disclosing to the Court the grounds of  his  detention
communicated to him by the detaining authority or the repre-
sentation  made by him against the order of  detention,  and
prevents  the  Court from examining them  for  the  purposes
aforesaid, and to that extent it must be held under  article
13  (2) to be void.  This however, does not affect the  rest
of  the Act which is severable.  As the petitioner  did  not
disclose  the grounds of his detention pending our  decision
on this point he will now be free to seek his remedy, if  so
advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
MAHAJAN J.--The people of India having solemnly resolved  to
constitute India into a Sovereign Democratic Republic on the
26th day of November 1949 gave to themselves a  Constitution
which came into force on the 26th January 1950.  This is the
first  case  in  which this Court has been  called  upon  to
determine  how  far the Constitution  has  secured  personal
liberty to the citizens of this country.
    A.K. Gopalan, the petitioner, who was already under  the
custody of the Superintendent, Central Jail, Cuddalore,  was
served with an order of detention under section 3 (1) of the
Preventive Detention Act, 1950 (Act IV of 1950) on the  27th
February  1950.  It was said in the order that the  Governor
of  Madras was satisfied that it was necessary to  make  the
order  with  a  view to preventing him from  acting  in  any
manner  prejudicial  to the security of the  State  and  the
maintenance of public order.  On 20th March 1950 a  petition
was presented to this Court under article 32
219
of  the  Constitution  praying for the issue of  a  writ  of
habeas  corpus directing the State  of   Madras  to  produce
him before the Court and to set him at liberty.  A writ  was
accordingly  issued.   The return to the writ  is  that  the
detention is legal under Act IV of 1950, enacted by  Parlia-
ment.   The  petitioner contends that the Act  abridges  and
infringes certain provisions of Part III of the Constitution
and is thus outside the constitutional limits of the  legis-
lature and therefore void and unenforceable.
    The matter is one of great importance both be-cause  the
legislative  power expressly  conferred by the 7th  Schedule
has  been impugned and   because the liberty of the  citizen
is seriously affected. The decision of the question  whether
Act IV of  1950 takes away or abridges the rights  conferred
by  Part III of the Constitution depends on a  consideration
of two points:
    (1) In what measure has the Constitution secured person-
al liberty to a citizen of India, and.
 (2) has the impugned  legislation in any way taken away  or
abridged the rights so secured and if so, to what extent ?
Act   IV  of 1950 provides for preventive  detention  in
certain cases and it has  been enacted as a temporary  meas-
ure.   It will cease to have effect on 1st April 1951.    It
empowers the Central Government and the State Governments to
make an order directing a person to  be detained with a view
to  preventing him from acting in any manner prejudicial  to
the  defence of India, the relations of India  with  foreign
powers  or  the security of India. It also  gives  power  to
detain  a person who acts in any manner prejudicial  to  the
security of the State or the maintenance of public order  or
the  maintenance of supplies and services essential  to  the
community.  It came into force on 26th February 1950 and was
enacted  by virtue of the powers conferred on Parliament  by
article  22 clause (7) of Part III of the Constitution  read
with the entries in the 7th Schedule.  There can be no doubt
that the legislative will expressed herein
220
would  be enforceable unless the legislature has  failed  to
keep within its constitutional limits.  It is quite  obvious
that the Court cannot declare a statute unconstitutional and
void  simply on the ground of unjust and  oppressive  provi-
sions   or   because  it is supposed   to  violate  natural,
social  or political rights of citizens unless it it can  be
shown  that such injustice is prohibited or such rights  are
guaranteed or protected by the Constitution.  It may also be
observed that an Act cannot be declared void because in  the
opinion of the Court it is opposed to the spirit supposed to
pervade the Constitution but not so expressed in words.   It
is difficult on any general principles to limit the  omnipo-
tence of the sovereign legislative power by judicial  inter-
position except in so far as the express words of a  written
Constitution  give  that authority. Article 13  (2)  of  our
Constitution  gives  such  an authority and  to  the  extent
stated  therein.  It says that the State shall not make  any
law  which  takes away or abridges the rights  conferred  by
this  Part and any law made in contravention of this  clause
shall to the extent of the contravention be void.
    Preventive  detention laws are repugnant  to  democratic
constitutions  and they cannot be found to exist in  any  of