dedol-hf/india-case-legal-rag huggingface dataset:
given to the detenu under law.  In my opinion, it would  not
be  possible for the Court to decide whether the  provisions
of article 22, clause (5), have  been duly complied with and
the fundamental right guaranteed by it has been made  avail-
able  to the detenu unless the grounds communicated  to  him
under  the provisions of this article are actually  produced
before the Court.  Apart from this, it is also open to.  the
person detained to contend that the detention
285
order has been a main fide exercise of power by the  detain-
ing  authority and that the grounds upon which it is  based,
are  not  proper  or relevant grounds  which  would  justify
detention  under  the-provisions of the law  itself.   These
rights  of  the detenu would for all practical  purposes  be
rendered unenforceable if the Court is precluded from  look-
ing  into the grounds which have been supplied to him  under
section  7 of the Preventive Detention Act.  In my  opinion,
section  14 of the Preventive Detention Act does  materially
affect the fundamental rights declared under Part III of the
Constitution  and  for  this reason it must be  held  to  be
illegal and ultra vires.  It is not disputed, however,  that
this section can be severed from the rest of the Act without
affecting  the other provisions of the Act in any way.   The
whole Act cannot, therefore, be held to be ultra vires.
    Mr. Nambiar has further argued that section 3 of the Act
also contravenes the provisions of article 32 of the Consti-
tution, for it makes satisfaction of the particular authori-
ties  final in matters of preventive detention  and  thereby
prevents   this   Court  from satisfying itself  as  to  the
propriety  of  the detention order. This  contention  cannot
succeed  as  no infraction of any fundamental right  is  in-
volved  in it.  As has been pointed out already, this  Court
cannot interfere unless it is proved that the power has been
exercised  by the authorities in a mala fide manner or  that
the grounds are not proper or relevant grounds which justify
detention.   The  provisions are undoubtedly harsh,  but  as
they do not take away the rights under articles 21 and 22 of
the Constitution, they cannot be held to be illegal or ultra
vires.
    The  result,  therefore,  is that, in  my  opinion,  the
Preventive Detention Act must be declared to be intra  vires
the  Constitution with the exception of section 14 which  is
held to be illegal and ultra vires.   The present  petition,
however, must stand dismissed, though it may be open to  the
petitioner to make a fresh application if he so chooses  and
if the grounds that have been supplied to him under  section
7  of  the Act do furnish adequate reasons for  making  such
application.
286
    DAS  J.--I am likewise of opinion that this  application
should be dismissed.
    The  contention of learned counsel appearing in  support
of this application is that the provisions of the Preventive
Detention Act, 1950  (Act IV of 1950), are extremely drastic
and  wholly  unreasonable and take away or,  in  any  event,
considerably abridge the fundamental rights conferred on the
citizens  by the provisions of Part III of the  Constitution
and that this Court should declare the Act wholly void under
article 13 (2) of the Constitution and set the petitioner at
liberty.
    It  is necessary to bear in mind the scope and ambit  of
the powers of the Court under the Constitution.  The  powers
of  the Court are not the same under all Constitutions.   In
England  Parliament  is supreme and there is  no  limitation
upon  its legislative powers. Therefore, a law duly made  by
Parliament  cannot be challenged in any Court.  The  English
Courts  have  to interpret and apply the law; they  have  no
authority to declare such a law illegal or unconstitutional.
By  the American Constitution the' legislative power of  the
Union is vested in the Congress and in a sense the  Congress
is the supreme legislative power.  But the written Constitu-
tion  of  the United States is supreme above all  the  three
limbs  of  Government and, therefore, the law  made  by  the
Congress,  in order to be valid, must be in conformity  with
the  provisions  of  the Constitution.  If it  is  not,  the
Supreme  Court  will intervene and declare that  law  to  be
unconstitutional  and  void.   As will be  seen  more  fully
hereafter, the Supreme Court of the United States, under the
leadership of Chief Justice Marshall, assumed the power  to.
declare  any law unconstitutional on the ground of  its  not
being in "due process of law," an expression to be found  in
the Fifth Amendment (1791) of the United States Constitution
and  the  Fourteenth Amendment (1868) which related  to  the
State  Constitutions.   It is thus that  the  Supreme  Court
established   its own supremacy over the executive  and  the
Congress.   In India the position of the Judiciary is  some-
where in
287
between  the Courts in England and the United States.  While
in  the main leaving our Parliament and the  State  Legisla-
tures  supreme in their respective legislative  fields,  our
Constitution  has,  by some of the articles,  put  upon  the
Legislatures  certain  specified limitations some  of  which
will have to be discussed hereafter. The point to be  noted,
however, is that in so far as there is any limitation on the
legislative power, the Court must, on a complaint being made
to it, scrutinise and ascertain whether such limitation  has
been  transgressed and if there has been  any  transgression
the Court will courageously declare the law  unconstitution-
al, for the Court is bound by its oath to uphold the Consti-
tution. But outside the limitations imposed on the  legisla-
tive  powers our Parliament and the State  Legislatures  are
supreme in their respective legislative fields and the Court
has no authority to question the wisdom or policy of the law
duly made by the appropriate legislature. Our  Constitution,
unlike  the  English Constitution,  recognises  the  Court's
supremacy over the legislative authority, but such supremacy
is a very limited one, for it is confined to the field where
the  legislative power is circumscribed by  limitations  put
upon it by the  Constitution itself.   Within this restrict-
ed field the Court may, on a scrutiny of the law made by the
Legislature,  declare it void if it is found to have  trans-
gressed  the constitutional limitations. But  our  Constitu-
tion,  unlike the American Constitution, does not  recognise
the  absolute  supremacy of the Court over  the  legislative
authority in all respects, for outside the restricted  field
of  constitutional limitations our Parliament and the  State
Legislatures  are  supreme in their  respective  legislative
fields  and  in that wider field there is no scope  for  the
Court in India to play the role of the Supreme Court of  the
United  States.   It is well for us to  constantly  remember
this basic limitation on our own powers.
The impugned Act has been passed by Parliament after the
Constitution  came into force.  Article 246 gives  exclusive
power to Parliament to make laws with respect to any of  the
matters enumerated in List I in the Seventh Schedule and  it
gives exclusive power to
288
the  State Legislatures to make laws with respect to any  of
the  matters specified in List II of that Schedule. It  also
gives concurrent power to Parliament as well as to the State
Legislatures to make laws with respect to any of the matters
enumerated  in List III in the Seventh  Schedule.  Residuary
powers of legislation are vested in parliament under article
248.
    The first thing to note is that under Entry 9 of List  I
the parliament and under Entry 3 in List III both parliament
and  the State Legislatures are empowered to make  laws  for
preventive detention for reasons connected with the  several
matters specified in the respective entries.  This  legisla-
tion is not conditioned upon the existence of any war with a
foreign  power or upon the proclamation of  emergency  under
Part XVIII of the Constitution. Our Constitution has, there-
fore, accepted preventive detention as the subjectmatter  of
peacetime  legislation as distinct from  emergency  legisla-
tion.   It  is  a novel feature to  provide  for  preventive
detention  in the Constitution.  There is no such  provision
in the Constitution of any other country that I know of.  Be
that  as it may, for reasons good or bad,  our  Constitution
has  deliberately and plainly given power to Parliament  and
the  State Legislatures to enact preventive  detention  laws
even in peacetime.  To many of us a preventive detention law
is  odious  at all times but what I desire to  emphasise  is
that  it  is not for the Court to question  the  wisdom  and
policy of the Constitution which the people have given  unto
themselves.  This is another basic fact which the Court must
not overlook.
     The  next thing to bear in mind is that, if there  were
nothing else in the Constitution, the legislative powers  of
Parliament  and the State Legislatures in  their  respective
fields would have been absolute.  In such circumstances  the
Court  would have been entitled only to  scrutinise  whether
Parliament or the State Legislature had, in making a partic-
ular  law,  over-.  stepped its legislative  field  and  en-
croached upon the legislative field of the other legislative
power, but could not have otherwise questioned the  validity
of any law made by the parliament or the State Legislatures.
289
Thus under Entry 9 of List I the Parliament and under  Entry
3 of List III the Parliament and the State Legislature could
make  as drastic a preventive detention law as  it  pleased.
Such  a law might have authorised a policeman, not to  speak
of a District Magistrate or Sub-Divisional Magistrate or the
Commissioner of Police, to take a man, citizen or  non-citi-
zen,  into custody and keep him in detention for as long  as
he pleased.  This law might not have made any provision  for
supplying  to  the detenu the grounds of  his  detention  or
affording any opportunity to him to make any  representation
to  anybody  or for setting up any advisory  board  at  all.
Likewise,  under Entries 1 and 2 in List III the  Parliament
or  the State Legislature might have added as many  new  and
novel offences as its fancy might have dictated and provided
for any cruel penalty ranging from the maiming of the  limbs
to boiling to death in oil or repealed the whole of the Code
of  Criminal Procedure and provided for trial by  battle  or
ordeal  or for conviction by the verdict of a sorcerer or  a
soothsayer.  Such law might have forbidden any speech criti-
cising the Government, however mildly, or banned all  public
meetings  or prohibited formation of all associations  under
penalty  of  law. Under Entry 33 of List  I  the  Parliament
might have made a law for acquiring anybody's properties for
the purposes of the Union without any compensation and under
Entry 36 in List III the State Legislature could do the same
subject  to  the provisions of Entry 42 in  List  III  which
empowers  the  making of a law laying  down  principles  for
payment of compensation which might be anything above  noth-
ing.   Under  Entry 81 Parliament could have  made  any  law
restricting  or  even prohibiting inter-State  migration  so
that a Bengali would not be able to move into and settle  in
Bihar  or vice versa.  It is needless to multiply  instances
of atrocious laws which Parliament or the State  Legislature
might  have made under article 246 read with  the  different
lists  if there were nothing else in the Constitution.   Our
Legislatures,  subject to the limitation of distribution  of
legislative  powers,  would have been as  supreme  in  their
respective legislative fields as the
290
English Parliament is and has been.  The Court in India,  in
such event, would have had to take the law duly made, inter-
pret  it and apply it.  It would not have been  entitled  to
utter  a  word as to the propriety of  the  particular  law,
although it might have shuddered at the monstrous atrocities
of such law.
    Our  Constitution, however, has not accepted this  abso-
lute  supremacy of our Parliament or the State  Legislature.
Thus by article 245 (1) the legislative power is  definitely
made  "subject  to the provisions  of  this   Constitution."
Turning  to  the Constitution, article 13  (2)  provides  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."
    This  clearly  puts a definite limitation  on  the  wide
legislative  powers  given by article 246. It  is  certainly
within  the  competency of the Court to  judge  and  declare
whether there has been any contravention of this limitation.
In  this  respect  again the Court has  supremacy  over  the
Legislature.
From  the  provisions  so far referred  to,  it  clearly
follows  that  there are two principal  limitations  to  the
legislative power of parliament, namely,--
     (i) that the law must be within the legislative  compe-
tence  of  parliament  as prescribed  by  article  246;  and
(ii)   that such law must be subject to the  pro-visions  of
the  Constitution  and  must not take away  or  abridge  the
rights conferred by Part III.
     There  can  be no question--and,  indeed,  the  learned
Attorney-General does not contend otherwise--that both these
matters  are  justiciable and it is open to  the  Courts  to
decide  whether  Parliament has transgressed either  of  the
limitations upon its legislative power.
     Learned  counsel for the petitioner does not  say  that
the  impugned Act is ultra vires the legislative  powers  of
Parliament  as prescribed by article 246. His contention  is
that the impugned Act is void
291
because it takes away or abridges the fundamental rights  of
citizens conferred by Part III of the Constitution.  It  is,
therefore,  necessary to ascertain first the  exact  nature,
extent and scope of the particular fundamental right insist-
ed  upon and then to see whether the impugned Act has  taken
away  or,  in  any way, abridged the  fundamental  right  so
ascertained.
    Civil rights of a person are generally divided into  two
classes,  namely,  the rights attached to  the  person  (jus
personarum)  and the rights to things, i.e.,  property  (jus
rerum).  Of the rights attached to the person, the first and
foremost  is the freedom of life, which means the  right  to
live,  i.e.,  the right that one's life shall not  be  taken
away except under authority of law.  Next to the freedom  of
life comes the freedom of the person, which means that one's
body shall not be touched, violated, arrested or  imprisoned
and one's limbs shall not be injured or maimed except  under
authority of law.  The truth of the matter is that the right
to live and the freedom of the person are the primary rights
attached  to the person.  If a man's person is free,  it  is
then  and then only that he can exercise a variety of  other
auxiliary  rights,  that is to say, he can,  within  certain
limits,  speak what he likes, assemble where he likes,  form
any  associations or unions, move about freely as  his  "own
inclination may direct," reside and settle anywhere he likes
and  practise  any profession or carry  on  any  occupation,
trade  or business. These are attributes of the  freedom  of
the  person  and  are consequently rights  attached  to  the
person.  It should be clearly borne in mind that  these  are
not  all  the rights attached to the person.   Besides  them
there  are  varieties  of other rights which  are  also  the
attributes of the freedom of the person. All rights attached
to the person are usually called personal liberties and they
are  too numerous to be enumerated. Some of these  auxiliary
rights  are so important and fundamental that they  are  re-
garded  and valued as separate and independent rights  apart
from the freedom of the person.
    Personal liberties may be compendiously summed up as the
right to do as one pleases within the law.  I
292
say within the law because liberty is not unbridled licence.
It  is what Edmund Burke called "regulated freedom."    Said
Montesquieu in Book III, Ch. 3, of his Spirit of the Laws:
    "In Governments, that is, in societies directed by laws,
liberty can consist only in the power of doing what we ought
to  will, and in not being constrained to do what  we  ought
not to will.   We must have continually present to our minds
the difference between independence and liberty.  Liberty is
a right of doing whatever the laws permit, and if a  citizen
could  do what they forbid, he would no longer be  possessed
of liberty, because all his fellow-citizens would enjoy  the
same power."
    To  the  same effect are the following  observations  of
Webster in his Works Vol. II, p. 393:
"Liberty  is  the creation of  law,   essentially  different
from  that  authorised  licentiousness  that  trespasses  on
right.   It  is a legal and refined idea, the  offspring  of
high  civilization, which the savage never understands,  and
never   can  understand.   Liberty exists in  proportion  to
wholesome  restraint; the more restraint on others  to  keep
off  from  us, the more liberty we have. It is an  error  to
suppose   that   liberty   consists   in   a   paucity    of
laws  .........  The working of our complex system, full  of
checks and restraints on legislative, executive and judicial
power  is favourable to liberty and justice.   These  checks
and restraints are so many safeguards set around  individual
rights and interests. That man is free who is protected from
injury."
    Therefore,  putting  restraint on the freedom  of  wrong
doing  of one person is really. securing the liberty of  the
intended  victims.  To curb the freedom of the  saboteur  of
surreptitiously  removing the fish plates from  the  railway
lines is to ensure the safety and liberty of movement of the
numerous  innocent and unsuspecting  passengers.  Therefore,
restraints on liberty should be judged not only subjectively
as applied to a few individuals who come within their opera-
tions but also objectively as securing the liberty of a  far
greater number of individuals.  Social interest in individu-
al
293
liberty  may well have to be subordinated to  other  greater
social  interests.   If a law ensures and  protects      the
greater  social interests then such law will be a  wholesome
and  beneficent law although it may infringe the liberty  of
some individuals, for it will enure for  the greater liberty
of  the  rest of the members of the society.   At  the  same
time, our liberty has also to be guarded against  executive,
legislative  as  well as judicial usurpation of  powers  and
prerogatives.  Subject to certain restraints on  individuals
and reasonable checks on the State every person has a varie-
ty  of personal liberties too numerous to be cataloged.   As
will  be  seen more fully hereafter,  our  Constitution  has
recognised  personal  liberties as fundamental  rights.   It
has guaranteed some of them under article 19 (1) but put re-
straints  on them by clauses (2) to (6).  It has put  checks
on the State's legislative powers by articles 21 and 22.  It
has  by providing for preventive detention, recognised  that
individual liberty may be subordinated to the larger  social
interests.
   Turning  now to the Constitution I find that Part III  is
headed  and  deals  with "Fundamental  Rights"  under  seven
heads, besides,  "General" provisions (articles 12 and  13),
namely  "Right to Equality" (articles 14 to 18),  "Right  to
Freedom"  (articles 19 to 22), "Right against  Exploitation"
(articles  23  and  24),  "Right  to  Freedom  of  Religion"
(articles  25  to  28), "Cultural  and  Educational  Rights"
(articles  29  and 30), "Right to  Property"  (article  31),
"Right  to  Constitutional Remedies" (articles  32  to  35).
Under the heading "Right to Freedom" are grouped four  arti-
cles,  19 to 22.  Article 19 (1) is in the  following  terms
:--
" (1) 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
294
    (g)  to  practise  any profession, or to  carry  on  any
occupation, trade or business."
    It will be noticed that of the seven rights protected by
clause  (1)  of article 19, six of them, namely,  (a),  (b),
(c),  (d),  (e) and (g) are what are said to be  rights  at-
tached  to the person (jus personarum). The remaining  item,
namely, (f) is the right to property (jus rerum).  If  there
were nothing else in article 19 these rights would have been
absolute rights and the protection given to them would  have
completely debarred parliament or any of the State  Legisla-
tures  from making any law taking away or abridging  any  of
those  rights.  But a perusal of article 19 makes  it  abun-
dantly  clear  that none of the seven rights  enumerated  in
clause (1) is an absolute right, for each of these rights is
liable  to  be curtailed by laws made or to be made  by  the
State to the extent mentioned in the several clauses (2)  to
(6)  of that article.   Those clauses save the power of  the
State  to make laws imposing certain specified  restrictions
on the several rights.  The nett result is that the unlimit-
ed  legislative  power given by article 246  read  with  the
different  legislative lists in the Seventh Schedule is  cut
down  by the provisions of article 19 and all laws  made  by
the State with respect to these rights must, in order to  be
valid,  observe  these limitations. Whether any law  has  in
fact transgressed these limitations is to be ascertained  by
the Court and if in its view the restrictions imposed by the
law are greater than what is permitted by clauses (2) to (6)
whichever  is applicable the Court will declare the same  to
be  unconstitutional and, therefore, void under article  13.
Here again there is scope for the application of the "intel-
lectual  yardstick"  of the Court.  If, however,  the  Court
finds,  on  scrutiny, that the law has not  overstepped  the
constitutional  limitations, the Court will have  to  uphold
the law, whether it likes the law or not.
     The first part of the argument is put broadly,  namely,
that personal liberty is generally guaranteed by the Consti-
tution  by article 19 (1) and that the Preventive  Detention
Act, 1950, has imposed unreasonable
295
restrictions  thereon  in  violation of  the  provisions  of
clauses (2) to (6) of that article.  The very first question
that arises, therefore, is as to whether the freedom of  the
person  which  is primarily and directly  suspended  or  de-
stroyed by preventive detention is at all governed by  arti-
cle  19 (1).  If personal liberty as such is  guaranteed  by
any  of  the sub-clauses of article 19 (1) then why  has  it
also been protected by article 21 ? The answer suggested  by
learned counsel for the petitioner is that personal  liberty
as  a substantive right is protected by article 19  (1)  and
article 21 gives only an additional protection by  prescrib-
ing the procedure according to which that right may be taken
away.    I  am unable to accept this  contention.   If  this
argument were correct, then it would follow that our Consti-
tution  does  not guarantee to any person, citizen  or  non-
citizen,  the freedom of his life as a substantive right  at
all, for the substantive right to life does not fall  within
any  of the sub-clauses of clause (1) of article 19.  It  is
retorted  in  reply that no constitution or human  laws  can
guarantee life which is the gift of God who alone can  guar-
antee and protect it.  On a parity of reasoning no Constitu-
tion  or human laws can in that sense guarantee  freedom  of
speech  or  free  movement, for one may be  struck  dumb  by