dedol-hf/india-case-legal-rag huggingface dataset:
board.   Section  10 lays down the
134
procedure to be followed by. the advisory board and  section
11  provides that in any case where the advisory  board  has
reported that there is sufficient cause for the detention of
the  person concerned, the detention order may be  confirmed
and  the detention of the person concerned may be  continued
for  such  period  as the Central Government  or  the  State
Government,  as the case may be, thinks fit.   Section  12,.
which  is  a very important section, as we  shall  presently
see, runs as follows :--
    "12  (1)  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 exceed-
ing  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
foreign powers or the security of India; or
      (b)  the  security of a State or  the  maintenance  of
public order.
(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
Judge  of a High Court nominated in that behalf by the  Cen-
tral  Government  or the State Government, as the  case  may
be."
    Section  14,  which is also a material section  for  the
purpose of this case, is to the following effect :--
    "(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
135
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,  not-
withstanding  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  commu-
nication  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 the contents of any such communication  or
representation as is referred to in sub-section (1):
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."
    The  point which has been pressed before us is that  the
Act is invalid, as it takes away or abridges certain  funda-
mental  rights conferred by Part III of the Constitution  of
India, and in support of this general proposition,  reliance
is placed on article 13 (2) which runs as follows :-
"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."
    The rights guaranteed under Part III of the Constitution
are classified under seven broad  heads, as follows :--
      (1)  Right to equality;
      (2)  Right to freedom;
      (3)  Right against exploitation;
      (4)  Right to freedom of religion;
      (5)  Cultural and educational rights;
      (6)  Right to property; and
      (7)  Right to constitutional remedies.
136
  Most  of the articles which are said to have  been  disre-
garded  occur under the heading  "Right to  freedom,"  these
articles  being  articles 19 (1) (d), 21  and  22.   Another
article which is also said to have been violated is  article
32, under which the present application for a writ of habeas
corpus purports to have been made.
    Article 19 (1)is divided into seven sub-clauses
and runs as follows:-
  "All citizens shall have the right-
     (a) to freedom of speech and expression;
     (b) to assemble peaceably and without arms;
     (c) to form associations or unions;
(d) to move freely throughout the territory of
         India;
     (e) to reside and settle in any part of the
         territory of India;  "
     (f) to acquire, hold and dispose of property; and
     (g) to practise any profession, or to carry on
any occupation, trade or business."
    Clauses (2), (3), (4), (5) and (6) of this  article pro-
vide that nothing in clause (1) shall affect the   operation
of  any  existing law in regard to the  rights   under  that
clause, under certain conditions which are  mentioned there-
in.   Clause (5), with which we are  directly concerned  and
which will serve as a specimen  to show the nature of  these
provisions, is to the  following effect :--
    "Nothing  in  sub-clauses (d), (e) and  (f)of  the  said
clause shall affect the operation of any existing  law in so
far as it imposes, or prevent the State from  making any law
imposing, reasonable restrictions on  the exercise of any of
the rights conferred by the said  sub-clauses either in  the
interests  of the general public  or for the protection  'of
the  interests of any Scheduled Tribe."
    The  contentions  advanced on behalf of  the  petitioner
with  reference  to this article are :--(1)  that  the   Act
under  which  he has been detained deprives him   who  is  a
citizen  of  the  Republic of India of the  right   to  move
freely throughout the territory of India,  which is  guaran-
teed under article 19 (1) (d), and (2)
137
that  under  clause (5) of article 19, it is  open  to  this
Court  to judge whether the restrictions imposed by the  Act
on the exercise of the right conferred by article 19 (1) (d)
are  reasonable  or  otherwise.  Before  dealing  with  this
argument,  it is necessary to understand the meaning of  the
words used in article 19 (1)(d) and to have a clear  compre-
hension as to the true nature of the right conferred  there-
under.    The contention put forward on behalf of the  peti-
tioner is that freedom of movement is the essence of person-
al liberty and any restraint on freedom of movement must  be
held  to  amount to abridgment or  deprivation  of  personal
liberty, as the case may be, according to the nature of  the
restraint.  After very careful consideration, I have come to
the conclusion that this contention is well-founded in  law.
Blackstone in his "Commentaries on the Laws of England" (4th
Edition,  volume 1, page 134) states that "personal  liberty
consists in the power of locomotion, of changing .'situation
or moving one's person to whatsoever place one's own  incli-
nation  may  direct,   without   imprisonment  or  restraint
unless by due course of law."  The authority of this  state-
ment  has  never  been questioned, and it  has  been  bodily
incorporated  by  H.J. Stephen in his "Commentaries  on  the
Laws  of England" and has been reproduced by Cooley  in  his
well-known  treatise  on "Constitutional  Limitations"  (8th
Edition,  volume 1, page 710), which was extensively  quoted
by both parties in the course of their arguments.   The view
that freedom of movement is the essence of personal  liberty
will  also  be  confirmed by reference to any  book  on  the
criminal  law of England dealing with the offence  of  false
imprisonment  or  any commentary on the  Indian  Penal  Code
dealing with the offences of wrongful restraint or  confine-
ment. Russell in his book on "Crimes and Misdemeanours" (8th
Edition,  volume 1, page 861), dealing with the  offence  of
false imprisonment states as follows :--
    "False  imprisonment is unlawful and total restraint  of
the personal liberty of another, whether by constraining him
or compelling him to go to a particular place or by  confin-
ing him in a prison or
138
police station or private place, or by detaining him against
his  will  in  a public place   ...........   the  essential
element  in  the offence is the unlawful  detention  of  the
person  or  the  unlawful restraint on  his  liberty.   Such
interference  with  the liberty of  another's  movements  is
unlawful, unless it may be justified  ......  "
    Again, Dr. Gour in dealing with the offence of  wrongful
restraint  in his book on "The Penal Law of  British  India"
(5th Edition, page 1144) observes as follows :--
    "Following  the  principle that every  man's  person  is
sacred  and that it is free, law visits with  its  penalties
those  who abridge his personal liberty, though he may  have
no  design upon his person.  But the fact that  he  controls
its movements for ever so short a time is an offence against
the King's peace, for no one has the right to molest another
in his free movements."
    Dealing  with the offence of wrongful  confinement,  the
same learned author observes as follows at page 1148 of  his
book :--
"'Wrongful  confinement'  is  a species  of  '  wrongful
restraint'  as  defined in the last  section.   In  wrongful
restraint,  there  is  only a partial  suspension  of  one's
liberty  of locomotion, while in wrongful confinement  there
is  a  total suspension of liberty 'beyond  certain  circum-
scribing limits'."
    Both these authors speak of restraint on personal liber-
ty  and interference with the liberty of one's movements  or
suspension  of  liberty  or  locomotion  as  interchangeable
terms.  In Bird v. Jones (1), Coleridge J. said that "it  is
one  part  of  the definition of freedom to be  able  to  go
whithersoever  one  pleases."  A similar  opinion  has  been
expressed by several authors including Sir Alfred Denning in
his book entitled "Freedom under the Law." There can  there-
fore  be  no doubt that freedom of movement is in  the  last
analysis  the  essence of personal liberty, and  just  as  a
man's wealth is generally measured in this country in  terms
of  rupees, annas and pies, one's personal  liberty  depends
upon  the  extent  of his freedom of movement.   But  it  is
contended on behalf of the State that freedom of move-
(1)  7 Q.B. 742.
139
ment to which reference has been made in article 19 (1)  (d)
is not the freedom of movement to which Blackstone and other
authors have referred, but is a different species of freedom
which is qualified by the words "throughout the territory of
India."   How  the  use of the  expression  "throughout  the
territory  of India" can qualify the meaning of the rest  of
the words used in the article is a matter beyond my  compre-
hension. In my opinion, the words "throughout the  territory
of  India" were used to stretch the ambit of the freedom  of
movement  to the utmost extent to which it could be  guaran-
teed by our Constitution.  The Constitution could not  guar-
antee freedom of movement outside the territorial limits  of
India,  and so has used those words to show that  a  citizen
was  entitled  to  move from one corner of  the  country  to
another freely and without any obstruction.  "Throughout" is
an  amplifying and not a limiting expression, and I am  sur-
prised to find that the expression "throughout the territory
of India," which was used to give the widest possible  scope
to the freedom of movement, is sought to be construed as  an
expression limiting the scope and nature of the freedom.  In
my  opinion, the words "throughout the territory of  India,"
having  regard to the context in which they have  been  used
here,   have  the  same force and meaning as the  expression
"to whatsoever place one's own inclination may direct"  used
by Blackstone, or the expression "freedom to be ,able to  go
whithersoever  one pleases" used by Coleridge J. in Bird  v.
Jones  (1).  I am certain that neither of these  authorities
contemplated  that the freedom of movement which  is  vouch-
safed to a British citizen, is guaranteed beyond the  terri-
torial limits of British territories.
    The  question as to whether preventive detention  is  an
encroachment  on the right guaranteed by article 19 (1)  (d)
has  been considered by the Nagpur, Patna and Calcutta  High
Courts.   The  view which has .been  ultimately  adopted  by
these  High  Courts is that preventive detention  is  not  a
violation  of  the right guaranteed by article 19  (1)  (d),
but, in the Calcutta
(1) 7 Q.B. 742.
140
High Court, where the matter has been elaborately discussed,
at  least  five Judges have held that it does,  and  in  the
ultimate  analysis the number of Judges. who have  held  the
contrary view appears to be the same.  Having regard to  the
fact  that the view expressed by so many learned  Judges  is
opposed  to  the view I am inclined to take, I  consider  it
necessary  to  deal briefly with the main  objections  which
have been raised in support of the narrow meaning sought  to
be attached  to  the  words  in  article  19 (1)(d).  I have
already  dealt with one  of them which is based on  the  ex-
pression "throughout the territory of India."  A. nd I shall
now proceed to deal with the, others seriatim.
    I.   It will be recalled that clause (5) of article  19,
which  I have already quoted in full, provides  among  other
things  that  nothing  in clause (1) (d)  shall  affect  the
operation of any law, present or future, imposing reasonable
restrictions  on  the exercise of the right  of  freedom  of
movement  either in the interests of the general  public  or
for the protection of the interests of any Scheduled  Tribe.
It  has been argued that the use of the words "interests  of
any  Scheduled  Tribe" in this clause shows that  the  right
guaranteed  by  article  19 (1) (d) is a  limited  right  of
movement,  such as the right to visit  different  localities
and  to go from one place to another and is  different  from
the  expression "freedom of movement" which has been  stated
by  Blackstone to be another name for personal liberty.   It
is  pointed out that the restrictions in contemplation  here
are  mainly  restrictions preventing  undesirable  outsiders
from  visiting  Scheduled  Areas  and  exploiting  Scheduled
Tribes, and if the words "freedom of movement" had been used
in  the  larger sense, such a small matter  would  not  have
found a place in clause (5) of article 19..
    I  must frankly confess that I am unable  to  appreciate
this argument and to hold that a mere reference to Scheduled
Tribes affects the plain meaning of the words used in clause
(1) (d) of article 19.  The words used in article 19 (1) (d)
are  very wide and mean that a person can go at his will  in
any  direction  to any locality and to  any  distance.   Re-
straint on a freedom.
141
so  wide in scope and extent may assume a variety  of  forms
and  may include internment or externment of a  person,  his
confinement to a particular locality or within the walls  of
a  prison, his being prevented from visiting or  staying  in
any  particular area, etc. The framers of  the  Constitution
wanted to save all restrictive legislation affecting freedom
of  movement  made in the interests of  the  general  public
(which   expression   means  the  same  thing   as   "public
interests") and I think that the law in regard to preventive
detention  is fully covered by the expression  "restrictions
imposed in the public interests."  But they also  remembered
that there were restrictive laws made in the interests of an
important  community  and that similar laws may have  to  be
made  in  future  and hence they added the  words  "for  the
protection  of  the interests of any  Scheduled  Tribe."   A
reference to the Fifth Schedule of the Constitution and  the
corresponding  provisions  of the Government of  India  Act,
1935,  as  well as to certain laws made  for  Chota  Nagpur,
Santhai Pargangs and .other localities will show that  great
importance has been attached in this country to. the protec-
tion  and  preservation  of the  members  of  the  scheduled
tribes .and maintenance of order in tribal areas, and  this,
in  my  opinion, is sufficient to account  for  the  special
mention  of the scheduled tribes in clause (5).  It may,  at
first sight, appear to be a relatively small matter, but  in
their  anxiety to cover the whole field of restrictive  laws
made whether in the public interest or in the interests of a
particular community and not to leave the smallest loophole,
the framers of the Constitution apparently decided to  draft
the clause in the present form.  As far as I am aware, there
are no restrictive laws made in the interests of any  commu-
nity  other  than the scheduled tribes, and I  think  clause
(5)is sufficiently comprehensive to include the smallest  as
well  as the most complete restrictions on freedom of  move-
ment.   I am also satisfied that the mere mention of  sched-
uled  tribes in clause (5) cannot change, the plain  meaning
of the words of the main provision which we find in  article
19  (1)  (d)  and confine it to some kind  of  peculiar  and
truncated freedom  of
142
movement  which  is unconnected with  personal  liberty  and
which  is  unknown to any Constitution with  which.  we  are
familiar:
    It  will perhaps be not out of place to refer  in  this.
connection  to  Ordinance XIV of 1943, which is one  of  the
ordinances  by  which the Defence of India  Act,  1939,  was
partly amended.  This ordinance provides for--
    "the  apprehension  and  detention in  custody  of   any
person  whom the authority empowered by the rules to  appre-
hend  or  detain  as the case may be  suspects,  on  grounds
appearing  to such authority-to be reasonable, of  being  of
hostile  origin, or of having acted, acting, being about  to
act,  or being likely to act in a manner prejudicial to  the
public safety or interest, the defence of British India, the
maintenance  of public order, His Majesty's  relations  with
foreign powers or Indian States, the maintenance of peaceful
conditions  in tribal areas or the efficient prosecution  of
the war, or with respect to whom such authority is satisfied
that  his apprehension and detention are necessary  for  the
purpose  of preventing him from acting in any such  prejudi-
cial manner, the prohibition of such person from entering or
residing  or  remaining in any area, and the  compelling  of
such  person to reside and remain in any area, or to  do  or
abstain from doing anything."
    The points to be noted in connection with the  ordinance
are :--
    (1)  that it is an ordinance specifically providing  for
apprehension and detention;
    (2) that notwithstanding the fact that there is a gener-
al  reference in it to acts prejudicial to public safety  or
interests  and maintenance of public order there is  also  a
specific reference to maintenance of peaceful conditions  in
tribal areas;
    (3) that tribal areas and scheduled tribes are,  kindred
subjects as would appear from the Fifth Schedule appended to
the Constitution; and
     (4)  that maintenance of peaceful conditions in  tribal
areas may be as much in the public interest as in the inter-
ests of persons living in those areas.
143
This  ordinance shows at least this much that  sometimes
the  law  of preventive detention can also be  made  in  the
interests of scheduled tribes or scheduled areas and  conse-
quently  the mere mention of scheduled tribes in clause  (5)
does  not  necessarily exclude laws relating  to  preventive
detention from the scope of article 19 (5) The same  remarks
apply to the ordinance called "The Restriction and Detention
Ordinance,  1944" (Ordinance No. III of 1944)  which  empow-
ered the Central Government or the Provincial Government  to
detain and make orders restricting the movements of  certain
persons  in  the interest of public safety,  maintenance  of
public  order as well as maintenance of peaceful  conditions
in tribal areas, etc.
    II.   It is also argued that since preventive  detention
amounts to a total deprivation of freedom of movement, it is
not  a violation of the right granted under article  19  (1)
(d)  in  regard  to which the  word  "restriction"  and  not
"deprivation"  has  been used in clause (5).  This  argument
also  does not appeal to me. There are really two  questions
which  fall to be decided in this case, viz., (a) Does  pre-
ventive detention take away the right guaranteed by  article
19  (1) (d)?; and (b) if so, what are the  consequences,  if
any ?
    It seems obvious to me that preventive detention amounts
to a complete deprivation of the right guaranteed by article
(19)  (d).  The meaning of the word "restriction" is  to  be
considered with reference to the second question and I think
that  it will be highly technical to argue that  deprivation
of  a  right cannot be said to involve  restriction  on  the
exercise of the right.  In my opinion, having regard to  the
context in which the word "restriction" has been used, there
is  no antithesis between that word and the  word  "depriva-
tion."  As I have already stated, restraint on the right  to
move can assume a variety of forms and restriction would  be
the most appropriate expression to be' used in clause (5) so
as  to cover all those forms ranging from total  to  various
kinds  of partial deprivation freedom of movement.   I  will
however have to advert to this subject later and will try to
show that the
19
144
construction I have suggested is supported by good  authori-
ty.
    III.  It appears that some of the Judges who had to deal
with  the  question  which we have before  us  were  greatly
influenced  by the argument that if the deprivation of  per-
sonal  liberty amounts to deprivation of the  right  granted
under  article  19 (1) (d), any conviction  for  an  offence
under the Indian Penal Code involving a sentence of  impris-
onment  will be subject to judicial review on the ground  of
reasonableness of the provisions of the Code under which the
conviction  is  recorded.  Meredith C.J. of the  Patna  High
Court has given expression to his concern for the  situation
which will thereby arise, in these words :--
    "It  will be seen that the claim made is  very  sweeping
indeed.   It would mean that every law under which a  person
may be imprisoned, including all the provisions of the Penal
Code, is open to examination by the Courts on the ground  of
reasonableness.   It  makes the Courts supreme  arbiters  in
regard  to any such legislation, and they can  reject  it-or
accept  it  in  accordance with their ideas  of  whether  it
appeals  to  their reason. But ideas  of  reasonableness  or
otherwise  are apt to vary widely.  Take for  example,  laws
relating  to prohibition or take such a matter  as  adultery
which  the  Indian law regards as a  crime  punishable  with
imprisonment but the English law does not.  It is  difficult
to believe the  framers of the Constitution ever intended to
place   so   enormous   a  power  in  the   hands   of   the
Courts  ................"[Rattan Roy v. The State of Biharl.
    The obvious and strictly legal reply to this argument is
that  the consideration, which has so greatly  weighed  with
the  learned  Chief Justice, is not enough to cut  down  the
plain meaning of the general words used in article 19 (5) of
the  Constitution.  As has been pointed out in a  number  of
cases,  "in construing enacted words, we are  not  concerned
with  the policy involved or with the results  injurious  or
otherwise which may follow by giving effect to the language
145
-used" [King Emperor v. Benoari Lal Sharma and others (1)I
    Apart  from this aspect of the matter, I agree with  one
of  the  learned Judges Of the Calcutta High  Court  in  his