dedol-hf/india-case-legal-rag huggingface dataset:
itself   and   the  court  cannot  help  in   the   matter."
    Nothing said by Mr. Nambiar is sufficient to persuade me
to  take  a different view of the matter than was  taken  in
Gopalan's case(1). It may be pointed out that Parliament may
well have thought that it was unnecessary to fix any maximum
period of detention in the new statute which was of a tempo-
rary nature and whose own tenure of life was limited to  one
year. Such temporary statutes cease to have any effect after
they expire, they automatically come to an end at the expiry
of  the period for which they have been enacted and  nothing
further can be done under them.  The detention of the  peti-
tioners  therefore is bound to come to an end  automatically
with  the  life of the statute and  in  these  circumstances
Parliament  may  well have thought that it would  be  wholly
unnecessary  to  legislate and provide a maximum  period  of
detention for those detained under this law.
The last point urged by Mr. Nambiar that the  provisions
of  the amended Act contravene the provisions of article  21
of  the  Constitution does not impress  me.  The  expression
"procedure established by law" was considered by the majori-
ty  in Gopalan's case(1) as meaning procedure prescribed  by
law.  The petitioners have been detained in accordance  with
the  procedure prescribed by the amended statute  and  their
detention  therefore  is in accordance with  procedure  pre-
scribed by law. The contention of Mr. Nambiar that they  are
governed by the procedure contained in section 12 of Act  IV
of 1950 as that was the procedure at the time when initially
they  were detained is, in my opinion, unsound.  It is  open
to Parliament to change the procedure by enacting a law  and
that  procedure  becomes the procedure  established  by  law
within the meaning
(1) [1950] S.C.R. 88.
640
of  that expression in article 21 of the Constitution.  Fur-
ther,  the  present detention of the  petitioners  being  by
virtue  of  section 12 of the amended Act  a  new  detention
under  the  amended  Act, the procedure  prescribed  by  the
amended  Act is the procedure established by law within  the
meaning of article 21.
    For the reasons given above, in my opinion, the  Preven-
tive Detention (Amendment) Act, 1951, is a valid statute and
the provisions impugned by Mr. Nambiar do not contravene the
Constitution  and the petitioners are not entitled to  their
release  merely  on the ground that the period of  one  year
mentioned in section 12 of Act IV of 1950 has expired.
    On the merits of the petitions it was urged (1) that the
grounds  supplied  to them were vague  and  insufficient  to
enable  them to make a proper representation, and  (2)  that
their  detention was mala fide  and on political  and  party
considerations. There is no force whatever in these  conten-
tions.
    The result is that all these petitions are dismissed and
the rules are discharged. This order will have force in  the
case  of  petitioners who have so far not been  released  by
Government.
    S.R.  DAS J.--I agree that the petitions should be  dis-
missed and I do so substantially on the grounds stated by my
learned brother Mahajan.
      BOSE J.--With the utmost respect I am unable to accept
the  majority  view. In my judgment, section 11 (1)  of  the
amending  Act is ultra vires. The ground on which I hold  it
to be so was suggested by me in the course of the arguments.
It was, however, not very fully dealt with possibly  because
I  expressed my view at a late stage and possibly because  I
did  so somewhat sketchily.  But as I am ploughing a  lonely
furrow that, fortunately, will not much matter.
     Articles  21  and 22 confer the  fundamental  right  of
personal  liberty. The first is general, and as the  meaning
of the words "procedure established by law" has
  641
been  thoroughly  discussed in Gopalan's case(1), I  do  not
intend  to cover that ground.  But so far as article 22  (4)
is  concerned, my opinion is that it confers  a  fundamental
right  not  to be kept under preventive detention  beyond  a
certain  period.  The extent of that period can vary but  it
can  only  be extended beyond three  months  within  certain
fixed limits and subject to specified conditions.
    Article  246  read with item 9 in List I and item  3  in
List  III of the Seventh Schedule confers jurisdiction  upon
the Union Parliament and the State Legislatures to make laws
for  preventive  detention, but article 22 (4)  imposes  re-
strictions. It says that-
    " No law providing for preventive detention shall autho-
rise  the  detention of a person for a  longer  period  than
three months,"
unless certain conditions are fulfilled.
The  conditions are set out in sub-clause (a)  and  sub-
clause (b). Under the former, a law can provide for  preven-
tive  detention over three months provided (1) there  is  an
advisory  board of a certain character, (2) the board is  of
opinion that there is sufficient cause for longer detention,
and  (:3)  the board reports before the  expiration  of  the
three  months. Then follows a further restriction  which  is
contained  in  the proviso to sub-clause  (4).  This  states
that--
" nothing in this sub-clause shall authorise the  deten-
tion  of any person beyond the maximum period prescribed  by
any  law made by Parliament under sub-clause (b)  of  clause
(7)."
Sub-clause (b) of clause (7) reads as follows :-
"(7) Parliament may by law prescribe.
   (b)  the maximum period for which any person may  in  any
class or classes of cases be detained under any law  provid-
ing for preventive detention."
    The second set of conditions is given in sub-clause  (b)
of  clause  (4).  This sets out that a person  can  also  be
detained beyond three months provided--
(1) [1950] S.C.R. 88.
642
    "such  person is detained in accordance with the  provi-
sions of any law made by Parliament under subclauses (a) and
(b) of clause (7)."
    I venture to underline the "and" because, in my opinion,
a lot turns on it. But I shall deal with that later.
    Sub-clause  (a)  of clause (7)  empowers  Parliament  to
prescribe-
    " the circumstances under which, and the class or class-
es of cases in which, a person may be detained for a  period
longer than three months under any law providing for preven-
tive detention without obtaining the opinion of an  advisory
board in accordance with the provisions of sub-clause (a) of
clause (4)."
    In  my  opinion, these provisions confer  a  fundamental
right not to be detained beyond a certain period. The extent
of that period can vary but the maximum period of  detention
cannot exceed certain fixed limits. Those limits are (a)  in
the  first  instance, three months:    not,  (b)the  maximum
prescribed  by  Parliament under sub-clause (7) (b).  In  my
opinion,  no  law can be made authorising  detention  either
under sub-clause (4) (a) or (4) (b) unless a maximum  period
of  detention is prescribed by Parliament  under  sub-clause
(7) (b).
    I  do not agree with the contention that the word  "may"
in clause (7) means "must". I am not prepared to depart from
the  usual  meaning of words unless compelled to do  so  for
overwhelming  reasons. In my opinion, Parliament is free  to
prescribe or not to prescribe a maximum period under  clause
(7)(b). It cannot be compelled to do so. But equally neither
Parliament nor a State Legislature is compelled to authorise
preventive  detention  beyond  three  months.  If,  however,
either  wishes to do so, then it is bound to conform to  the
provisions  of  either sub-clause (a)or  sub-clause  (b)  of
clause  (4) or both; and in the case of sub-clause  (a)  the
proviso  is  as  much a part of the subclause  as  its  main
provision.   If no maximum limit is fixed under  clause  (7)
(b), then the proviso cannot operate and if it cannot  oper-
ate, no legislative action
643
can,  in my opinion, be taken under clause (4) (a). If A  is
told  by  B that he may go to a bank and withdraw a  sum  of
money  not exceeding such limit as may be fixed by C, it  is
evident  that until C fixes the limit no money can be  with-
drawn.  C  cannot  be compelled to fix a  limit  but  if  he
chooses not to do so, the money cannot be withdrawn.  Equal-
ly, if A is told that he may withdraw money not exceeding  a
limit which he himself may fix, there can, in my opinion, be
no right of withdrawal until he fixes the limit.
    Look at it another way. A British General is told by the
Indian  Government  that he may travel from India  to  Burma
quickly and easily by plane. He is also told that he may  in
addition drive by car over the hills and through the jungles
provided he does not go beyond the confines of any road made
by  the  Burmese Government; and the Burmese  Government  is
told that it may, if it so chooses, put in a road at India's
expense. It is fairly obvious that the Burmese Government is
not  bound to make the road and it is equally  obvious  that
under these conditions the General will not be able to go by
car unless the road is made.
    I realise that analogies are often inaccurate and may be
misleading. But these examples serve to illustrate the  line
of  my reasoning. In my opinion, the Constitution (a)  tells
the  State Legislatures that they may legislate for  preven-
tive  detention beyond three months but not beyond  a  limit
which  Parliament  may  fix and (b)  tells  Parliament  that
Parliament itself may do the same thing provided the  deten-
tion  does  not exceed a maximum which it  may  itself  fix.
There  is  no need to fix a maximum in either event  but  if
that  is  not done, then there can be no  legislation  under
clause (4) (a). Until the road is built there is no right of
way.
    The same limitation attaches to clause (4) (b). Legisla-
tive  action cannot be taken under this unless,  first,  the
law  is  made by Parliament and, second, it is  made  "under
sub-clauses (a) and (b) of clause (7)".  I again venture  to
underline the "and" because, in my opinion, "and" means  and
should mean "and" unless there is
644
compelling  reason  to make it mean" or ". To my  mind,  not
only  is  there no compelling reason here but, on  the  con-
trary, there are powerful reasons why it should be construed
in its usual and normal sense. The reasons are these.
    Articles 21 and 22 confer a fundamental right and give a
fundamental guarantee. It is therefore the duty of the Court
to  see  that  the right is kept fundamental  and  that  the
fullest  scope is given to the guarantee. It is our duty  to
ensure  that  the right and the guarantee are  not  rendered
illusory and meaningless. Therefore, wherever there is scope
for  difference of opinion on a matter of interpretation  in
this  behalf, the interpretation which favours  the  subject
must  always  be used because the right has  been  conferred
upon  him and it is the right which has been made  fundamen-
tal,  not the fetters and limitations with which it  may  be
circumscribed  by legislative action. It ,is true  the  full
scope and content of the right cannot be determined  without
examining the boundaries within which it is to be  confined,
and  I  agree that in interpreting  these  provisions  equal
weight  must be given to all the clauses; also that  no  one
part  can  be treated with greater sanctity than  the  rest.
But if, when all that is done, doubt still remains, then the
doubt  must,  in my judgment, be resolved in favour  of  the
subject and not of the State.
Brush  aside for a moment the pettifogging of  the  law
and forget for the nonce all the learned disputations  about
this  and  that, and "and" or "or ", or "may" and  "must  ".
Look past the mere verbiage of the words and penetrate  deep
into the heart and spirit of the Constitution. What sort  of
State are we intended to be ? Have we not here been given  a
way  of life, the right to individual freedom,  the.  utmost
the State can confer in that respect consistent with its own
safety  ? Is not the sanctity of the  individual  recognised
and emphasised again and again ? Is not our Constitution  in
violent  contrast  to  those of States where  the  State  is
everything and the individual but a slave or a serf to serve
the will of those who for the time being wield
    645
almost  absolute power ? I have no doubts on this  score.  I
hold it therefore to be our duty, when there is ambiguity or
doubt  about the construction of any clause in this  chapter
on Fundamental Rights, to resolve it in favour of the  free-
doms which have been so solemnly stressed..Read the magnifi-
cent sweep of the preamble :-
    "We,  the people of India, having solemnly  resolved  to
constitute India into a Sovereign Democratic Republic and to
secure  to  all its citizens:  Justice,  Liberty,  Equality,
Fraternity."
Read the provisions of the chapter on Fundamental Rights
:--
"All citizens shall have the right etc."
       *            *            *
   "No  person  shall be deprived Of his  life  or  personal
liberty except according to procedure established by law."
      *             *             *
    No  person who is arrested shall be detained in  custody
without etc..."
        *           *             *
    "No law providing for preventive detention shall  autho-
rise etc. unless--"
Read  the  provisions which circumscribe the  powers  of
Parliament  and prevent it from being supreme. What does  it
all  add  up  to ? How can it be  doubted  that  the  stress
throughout is on the freedoms conferred and that the limita-
tions placed on them are but regrettable necessities ?
    I  do not doubt that in construing the  Constitution  we
must do so according to all the usual well recognised canons
of  construction.  I do not doubt that when the language  is
plain, full effect must be given to it whatever the implica-
tions.  All I insist on is that when there is  ambiguity  or
doubt  and it is possible to take either this view or  that,
then  we must come down on the side of liberty and  freedom;
and I err in good company in so holding. Lord Romer said  as
much in Liversidge's case(1) though he made an exception  in
the
(1) [1942] A.C. 206 at 280.
83
646
case  of  war legislation. How can it be said that  in  this
case  there  is no ambiguity and that there is no  room  for
doubt  ? When I am asked to hold that "and" means  "or"  and
that "may" means "must", how can it be said that there is no
room for difference of opinion? When I am told that--
    "no law providing for preventive detention shall  autho-
rise  the  detention of a. person for a longer  period  than
three months"
unless  there is an Advisory Board etc., and even  then  not
beyond
    "the  maximum period prescribed by any law made by  Par-
liament under sub-clause (b) of clause (7)"
    how  can  it be said that there iS no  doubt  about  the
intention and that this clearly and unambiguously means that
the  detention can be for an indefinite period even under  a
State law if Parliament does not choose to act under  clause
(7)(b)  ?  To my mind, there is ambiguity and there is  room
for doubt.
    I feel that the people of India chose for themselves the
free  way  of life and that they  entrusted  to  Parliament,
which  represents their will, the duty of satisfying  itself
that any limitations hereafter to be placed on the  freedoms
conferred are necessary and essential and that these limita-
tions will not exceed such limits as Parliament itself shall
determine solemnly and deliberately, after anxious  scrutiny
and dutiful care. I cannot bring myself to believe that  the
framers  of  our Constitution intended  that  the  liberties
guaranteed  should be illusory and meaningless or that  they
could  be toyed with by this person or that.  They  did  not
bestow  on the people of India a cold, lifeless, inert  mass
of  malleable clay but created a living  organism,  breathed
life into it and endowed it with purpose and vigour so  that
it should grow healthily and sturdily in the democratic  way
of  life,  which is the free way. In  the  circumstances,  I
prefer to decide in favour of the freedom of the subject.
    I am not hampered here by considerations of war necessi-
ty or emergency legislation where some authorities hold that
the canons of construction are different
647
and  that allowance must be made in favour of the State  for
the imperfections of language used in legislation which  had
to  be  drafted and enacted in a desperate  hurry  with  the
State in dire and immediate peril. I am construing a Consti-
tution  which  was hammered out  solemnly  and  deliberately
after  the most mature consideration and with the most  anx-
ious care.  I feel bound, therefore, when there is ambiguity
or  doubt, to resolve it in favour of what I conceive to  be
the free way of a Sovereign Democratic Republic.  After all,
who  framed  the Constitution and for whose benefit  was  it
made ?,--not just for those in brief authority, not only for
lawyers  and  dialecticians  but for the  common  people  of
India.  It should therefore be construed, when that  can  be
done  without doing violence to the language employed, in  a
simple straightforward way so that it makes sense to the man
in  the  street, so that the common people of the  land  can
follow  and  understand its meaning. To my mind,  the  whole
concept  of the Constitution is that after years  of  bitter
struggle  the  citizens of India are  assured  that  certain
liberties shall be guaranteed to them and that these  liber-
ties shall not be curtailed beyond limits which they and all
the  world.  can  know and which can Only be  fixed  by  the
highest  authority in the land, Parliament itself,  directly
and specifically after affording opportunity for due  delib-
eration in that august body.  I would struggle hard  against
any  interpretation which permitted evasion of those  impor-
tant limitations and which permitted those hardwon liberties
to  be curtailed by some accidental side wind  which  allows
virtual  delegation  of the responsibility  for  fixing  the
maximum limits which Parliament is empowered to fix, to some
lesser authority, and worse, for fixing them ad hoc in  each
individual  case, for that, in my opinion, is what  actually
happens, whatever the technical name, when Parliament  fixes
no maximum and lesser authorities are left free to decide in
each case how long the individual should be detained.  I  am
clear  that  these are not matters which  should  be  viewed
technically or narrowly but in the broad and liberal  spirit
in which they were conceived.  Bearing this in mind, I will
648
proceed  to examine the impugned provisions of the  amending
Act.
   In  my judgment, section 9 is good because it  confers  a
8benefit  and a privilege.  It takes away nothing. It  gives
all  detenus  the right to go before an Advisory  Board  for
review  of their cases.  It confers this right not  only  on
those  who may be detained in the future but also  on  those
already under detention. And further, it confers this  right
on  those who had no such right before. This is not  an  in-
fringement  of any fundamental right nor does it  contravene
any  article of the Constitution; therefore  Parliament  was
free to legislate as it pleased regarding that. It was  free
artificially  to  alter the starting point of the  order  of
detention  which is what it has done in sub-section  (2)(a).
That section, in my judgment, is intra vires.
    So  also  is  new section 12 which  continues  in  force
existing  detentions despite the expiry of the old  Act  and
states  that  the passing of the new Act  shall  not  affect
either  the validity or duration of orders passed under  the
old  Act.  It will be remembered that the detentions we  are
considering  in  these cases were good under  the  old  Act.
That  Act prescribed a maximum  limit, namely one year,  for
this  class of detention. In my opinion, Parliament had  the
right  to say in this particular manner, for the purpose  of
removing doubts, that detentions already in force under that
Act should continue in force for the maximum period  already
prescribed.   That,  to my mind, is the force of  the  words
"continue," "validity" and "duration." That would have  been
the  result in any event but section 12 is there  to  remove
possible doubts.
Section 11 (2) is also good because here again a  benefit
is  conferred.  Detenus who had no right to release  on  the
advice of an Advisory Board are here given this ' privilege.
Therefore,  this is also intra vires.  But  sub-section  (1)
is,  to  my mind, ultra vires. It is here that  we  find  an
infringement of article 22(4). It reads:--
      "In any case where the Advisory Board has reported that
there  is in its opinion sufficient cause for the  detention
of a person, the appropriate Government may
  649
confirm  the detention order and continue the  detention  of
the person concerned for such period as it thinks fit."
    This is word for word the same as section 11 of the  old
Act.  It does not prescribe a maximum limit.
    Now  section 11 replaces sections 11 and 12 of  the  old
Act.   The amending Act directs that new section 11 be  sub-
stituted  for  old sections 11 and 12.  Old section  12  had
prescribed a maximum limit of one year in certain classes of
cases.   That is done away with in the new Act.  As  regards
the  rest,  neither the old Act nor the new  prescribes  any
limit  for other classes of detention. That, in my  opinion,
not only contravenes article 22 (4) but in effect shifts the
responsibility  for prescribing a maximum to  the  executive
authorities of each State and allows them to do it ad hoc in
each  case.  I am not speaking technically at the moment.  I
am  viewing it broadly as the man in the street would. I  am
placing myself in the position of the detenu and looking  at
it  through his eyes. The niceties of the law do not  matter
to him. He does not care about grammar. All that matters  to
him  is that he is behind the bars and that  Parliament  has
not  fixed  any  limit in his kind of case  and  that  local
authorities  tell  him that they have the right to  say  how
long he shall remain under detention.  I cannot bring myself
to  think that this was intended by the  Constitution.   The
powers given to Parliament are ample. The safeguards for the
safety  of  the State are all there.  In  the  last  resort,
immediate  action  can be taken under  the  emergency  provi
sions. Therefore, when Parliament and the State Legislatures
are  told  that they cannot authorise  preventive  detention
beyond three months unless Parliament does this and that,  I
am of opinion that the responsibility to do these things  is
on  Parliament  itself and that in  this  particular  matter
there  can  be no delegation of authority.  The  Constituent
Assembly has entrusted this particular matter to the care of
Parliament  itself  and has made this  Parliament's  special
responsibility. The country is therefore entitled to receive
the  benefit of the  mature judgment, wisdom and  patriotism
of that august body.
650
I am not doubting Parliament's general powers of delega-
tion.  But,  in my opinion, these powers  are  circumscribed
and each case must be judged upon its own circumstances.  As
this  matter  is under consideration  in another case and as
mine is a dissenting voice here, all I need say in this case
is that in my judgment this is not one of the matters  which
can be delegated.
    It was said that all this is irrelevant because a  maxi-
mum  limit has in fact been fixed in the  present  instance.
It was argued that the life of this Act has only been  fixed
for one year and that the life of the old Act was also  only
one  year  and that this in effect fixes a  maximum.   I  am
aware  that  there  is high authority for this  view  and  I
venture to dissent with the utmost reluctance, but with  the
greatest respect I find myself unable to agree.      '
    In  the  first place, I cannot agree  that  the  maximum