dedol-hf/india-case-legal-rag huggingface dataset:
were furnished, and not when further and better  particulars
were  given on the 26th of August 1950." The learned  Attor-
ney-General,  appearing for the appellant,  has  strenuously
objected to this line of approach.
    As the question of vagueness of grounds for the order of
detention  and  the question whether  supplementary  grounds
could be furnished after the grounds were first given to the
detenue  have  arisen in various High Courts,  we  think  it
right  that   the   general principles  should  be  properly
appreciated.   The Constitution of India has given  legisla-
tive powers to the States and the Central Government to pass
laws permitting preventive detention. In order that a legis-
lation permitting preventive detention may not be  contended
to be an infringement of the Fundamental Rights provided  in
Part  III  of the Constitution, article 22  lays   down  the
permissible  limits  of  legislation  empowering  preventive
detention. Article 22 prescribes the minimum procedure  that
must be included in any law permitting preventive  detention
and  as  and  when such requirements are  not  observed  the
detention, even if valid an initio, ceases to be "in accord-
ance  with procedure established by law" and  infringes  the
fundamental  right of the detenue guaranteed under  articles
21  and 22 (s) of the Constitution. In that way the  subject
of preventive detention has been brought into the chapter on
Fundamental  Rights.  In the 3resent case we  are  concerned
only  with  clauses (5) and (6) of article 22 which  run  as
follows:-
    22. "(5) When any person is detained in pursuance of  an
order made under any law providing for preventive detention,
the authority making the order shall,
175
as soon as may be, communicate to such person the ground  on
which  the  order has been made and shall afford   him   the
earliest opportunity of making a representation against  the
order.
(6)  Nothing in clause (5) shall require  the  authority
making  any such order as is referred to in that  clause  to
disclose facts which such authority considers to be  against
the public interest to disclose."
    It  has  to  be borne in mind that  the  legislation  in
question  is  not an emergency legislation.  The  powers  of
preventive detention under this Act of 1950 are in  addition
to  those  contained in the Criminal Procedure  Code,  where
preventive detention is followed by an inquiry or trial.  By
its very nature, preventive detention is aimed at preventing
the  commission  of an offence or  preventing  the  detained
person  from achieving a certain end.  The authority  making
the  order therefore cannot always be in possession of  full
detailed information when it passes the order and the infor-
mation  in its possession may fall far short of legal  proof
of any specific offence, although it may be indicative of  a
strong probability of the impending commission of a prejudi-
cial act.  Section a of the Preventive Detention Act  there-
fore  requires  that  the Central Government  or  the  State
Government must be satisfied with respect to any person that
with  a  view to preventing him from acting  in  any  manner
prejudicial  to (1) the defence of India, the  relations  of
India with foreign powers, or the security of India, or  (2)
the  security  of  the State or the  maintenance  of  public
order,  or  (8)  the maintenance of  supplies  and  services
essential to the community  .........  it is necessary So to
do,  make an order directing that such person  be  detained.
According  to the wording of section 3 therefore before  the
Government can pass an order of preventive detention it must
be satisfied with respect to the individual person that  his
activities  are directed against one or other of  the  three
objects  mentioned  in the section, and that  the  detaining
authority was satisfied that it was necessary to prevent him
from
23
176
acting  in  such a manner. The wording of the  section  thus
clearly  shows that it is the satisfaction of  the   Central
Government or the State Government on the point which  alone
is necessary to be established. It is significant that while
the  objects  intended  to be defeated  are  mentioned,  the
different  methods, acts or omissions by which that  can  be
done  are  not mentioned, as it is not humanly  possible  to
give   such   an exhaustive list.  The satisfaction  of  the
Government however must be based on some grounds.  There can
be  no  satisfaction if there are no grounds for  the  same.
There  may be a divergence of opinion as to whether  certain
grounds  are  sufficient  to bring  about  the  satisfaction
required  by  the  section. One person may  think  one  way,
another the other way.  If, therefore, the grounds on  which
it  is stated that the Central Government or the State  Gov-
ernment was satisfied are such as a rational human being can
consider  connected  in some manner with the  objects  which
were  to be prevented from being attained, the  question  of
satisfaction  except on the ground of mala fides  cannot  be
challenged  in  a court.  Whether in a particular  case  the
grounds  are sufficient or not, according to the opinion  of
any person or body other than the Central Government or  the
State  Government, is ruled out by the wording of  the  sec-
tion.  It  is not for the court to sit in the place  of  the
Central Government or the State Government and try to deter-
mine  if  it would have came to the same conclusion  as  the
Central  or  the  State Government. As  has  been  generally
observed,  this is a matter for the subjective  decision  of
the  Government and that cannot be substituted by an  objec-
tive  test  in  a court of law. Such  detention  orders  are
passed on information and materials which may not be strict-
ly  admissible  as  evidence under  the Evidence  Act  in  a
court,  but which the law, taking into   consideration   the
needs  and  exigencies of administration, has allowed to  be
considered  sufficient  for the subjective decision  of  the
Government.
    An  order having been so permitted to be made, the  next
step to be considered is, has the detained person
177
any say in the matter? In the chapter on Fundamental Rights,
the  Constitution  of India, having given  every  citizen  a
right  of  freedom  of movement, speech,   etc.  with  their
relative limitations prescribed in the different articles in
Part  III, has considered the position of a person  detained
under an order made under a Preventive Detention Act.  Three
things  are  expressly considered. in article 22 (5)  it  is
first considered that the man so detained has a right to  be
given  as soon as may be the grounds on which the order  has
been made. He may otherwise remain in custody without having
the  least idea as to why his liberty has been  taken  away.
This is considered an elementary right in a free  democratic
State.  Having received the grounds for the order of  deten-
tion,  the next point which is considered is, "but  that  is
not  enough;  what  is the good of the  man  merely  knowing
grounds for his detention if he cannot take steps to redress
a wrong which he thinks has been committed  either in belief
in the grounds or in making the order." The clause therefore
further  provides that the detained person should  have  the
earliest  opportunity making a representation  against   the
order.   The representation has to  be against the order  of
detention because the grounds are only steps for the  satis-
faction  of the Government on  which satisfaction the  order
of  detention has been made. The third thing provided is  in
clause (6). It appears to have been thought that in  convey-
ing  the  information to the detained person  there  may  be
facts which cannot be disclosed in the public interest.  The
authorities  are  therefore left with a discretion  in  that
connection  under  clause (6).  The grounds which  form  the
basis  of satisfaction when formulated are bound to  contain
certain facts, but mostly they are themselves deductions  of
facts from facts.  That is the general structure of  article
22, clauses (5) and (6), of the Constitution.
     The  question arising for discussion is what should  be
stated  in  the grounds. It is argued that whatever  may  be
stated  or  omitted  to be stated,  the  ground   cannot  be
vague;that the Constitution envisages the
178
furnishing  of  the grounds once and therefore there  is  no
occasion for furnishing particulars or supplemental  grounds
at a later stage; and that article 22 (5) does not give  the
detained person a right to ask for particulars, nor does  it
give  the authorities any right to supplement  the  grounds,
once  they have furnished the same. In our opinion  much  of
the controversy is based on a somewhat loose appreciation of
the  meaning of the words used in the discussion.  We  think
that the position will be clarified if it is appreciated  in
the  first instance what are the rights given by article  22
(5).  'The  first part of article 22, clause  (5),  gives  a
right  to  the  detained person to be  furnished  with  "the
grounds on which the order has been made" and that has to be
done  "as soon as may be."  The second right given  to  such
persons  is of being afforded "the earliest  opportunity  of
making  a representation against the order."  It is  obvious
that  the grounds for making the order as  mentioned  above,
are the grounds on which the detaining authority was  satis-
fied that it was necessary to make the order. These  grounds
therefore  must be in existence when the order is made.   By
their  very nature the grounds are conclusions of facts  and
not  a complete detailed recital of all the facts. The  con-
clusions  drawn from the available facts will show in  which
of  the three categories of prejudicial acts  the  suspected
activity  of  the particular person is considered  to  fall,
These  conclusions are the "grounds" and they must  be  sup-
plied.  No part of such "grounds" can be held back  nor  can
any more "grounds" be added thereto.  What must be  supplied
are  the  "grounds  on which the order has  been  made"  and
nothing  less.   The  second right  of  being  afforded  the
"earliest opportunity of making a representation against the
order"  is  not confined to only a physical  opportunity  by
supplying  paper and pen only.  In order that a  representa-
tion can be made the person detained must first have  knowl-
edge  of the grounds on which the authorities conveyed  that
they  were   satisfied  about the necessity  of  making  the
detention  order.  It is therefore clear that if the  repre-
sentation has to be intelligible to meet the charges
179
contained  in the grounds, the information conveyed  to  the
detained  person must be sufficient to attain  that  object.
Ordinarily, the "grounds" in the sense of conclusions  drawn
by the authorities will indicate the kind of prejudicial act
the  detenue is suspected of being engaged in and that  will
be sufficient to enable him to make a representation setting
out his innocent activities to dispel the suspicion  against
him.  Of course if the detenue is told about the details  of
facts  besides the grounds he will certainly be in a  better
position to deal with the same.  It is significant that  the
clause does not say that the "grounds" as well as details of
facts  on  which' they are based must be furnished  or  fur-
nished at one time.  The law does not prescribe within  what
time  after  the grounds are  furnished  the  representation
could  be made.  The time in each case appears  deliberately
unprovided  for  expressly, because 'circumstances  vary  in
each  case and make it impossible to fix a  particular  time
for the exercise of each of these two rights.
    It  thus appears clear that although both  these  rights
are  separate  and are to be exercised at  different  times,
they  are still connected with each other.  Without  getting
information sufficient to make a representation against  the
order  of detention it is not possible for the man  to  make
the representation.  Indeed the right will be only  illusory
but  not  a  real right at all.  The right  to  receive  the
grounds is independent but it is thus intentionally bound up
and  connected  with the right to make  the  representation.
Although these two rights are thus linked up, the contingen-
cy  of further communication between the furnishing  of  the
grounds  on which the order is made and the exercise of  the
right  of representation granted by the second part of  that
clause is not altogether excluded., One thing is clear  from
the  wording  of  this clause and that  is  that  after  the
grounds  are  once conveyed to the detenue there can  be  no
addition  to the grounds. The grounds being the heads,  from
which the Government was satisfied that it was necessary  to
pass  the  order of detention, there can be no  addition  to
those
180
grounds  because such additional grounds will be either  the
grounds which were not elements to bring about the satisfac-
tion  of the Government or if they were such  grounds  there
has  been  a breach of the provision of the  first  part  of
article 22 (5), as those grounds for the order of  detention
were  not  conveyed to the detained person "as soon  as  may
be."
   This however does not mean that all facts leading to  the
conclusion mentioned in the grounds must be conveyed to  the
detained person at the same time the grounds are conveyed to
him.  The  facts on which the conclusion  mentioned  in  the
grounds  are based must be available to the Government,  but
there  may  be cases where there is delay or  difficulty  in
collecting the exact data or it may not be convenient to set
out  all the facts in the first communication.  If the  sec-
ond'  communication contains no further conclusion  of  fact
from  facts, but only furnishes all or some of the facts  on
which  the  first  mentioned conclusion was  rounded  it  is
obvious  that  no fresh ground for which  the  order      of
detention was made is being furnished to the detained person
by  the second communication which follows some  time  after
the  first communication.  As regards the contents  of  that
communication  therefore he test appears to be whether  what
is  conveyed in the second  communication is a statement  of
facts  or  vents, which facts or events were  already  taken
into consideration in arriving at the conclusion included in
the  ground  already supplied.  If the  later  communication
contains facts leading to a conclusion which is outside  the
ground  first  supplied, the same cannot be looked  into  as
supporting  the  order  of  detention  and  therefore  those
grounds are "new" grounds.  In our opinion that is the  more
appropriate  expression to be used.  The  expression  "addi-
tional  grounds"  seems  likely  to  lead  to  confusion  of
thought.
The next point to be considered is the time factor. if a
second  communication becomes necessary, when should  it  be
made ? Clause 22 (5) lays down two time factors.  The  first
is that the grounds should be supplied  "as soon as may be "
This allows the
181
authorities reasonable time to formulate the grounds on  the
materials  in their possession. The time element  is  neces-
sarily left indeterminate because activities of  individuals
tending to bring about a certain result may be spread over a
long  or a short period, or a larger or a smaller  area,  or
may  be  in connection with a few or  numerous  individuals.
The time required to formulate the proper grounds of  deten-
tion, on information received, is bound to vary in individu-
al  cases. There is no doubt that no express words are  used
to suggest a second communication from the authority to  the
detained person.  But having regard to the structure of  the
clause  dealing  with the two rights connected by  the  word
"and  ",  and the use of the words "as soon as may  be"  and
"earliest  opportunity" separately, indicating two  distinct
time  factors, one in respect of the furnishing  of  grounds
and  the other in respect of the making of  the  representa-
tion,  the contingency of a second communication  after  the
grounds are furnished, is not excluded.  However, the second
communication  should  not be liable to be  charged  as  not
being within the measure "as soon as may be ".  Secondly, it
must  not create a new ground on which satisfaction  of  the
Government  could be suggested to have been arrived at.   In
our  opinion,  if these two conditions  are  fulfilled,  the
objection against a later communication of details or  facts
is not sufficient to cause an infringement of the  provision
made  in article 22(5).  The question has to  be  approached
from  another  point of view also. As mentioned  above,  the
object  of furnishing grounds for the order of detention  is
to  enable  the detenue to make a representation,  i.e.,  to
give him an opportunity to put forth his objections  against
the order of detention.  Moreover, "the earliest  opportuni-
ty" has to be given to him to do that.  While the grounds of
detention are thus the main factors on which the  subjective
decision  of  the Government is based,  other  materials  on
which  the conclusions in the grounds are rounded could  and
should equally be conveyed to the detained person to  enable
him to make out his objections against the
182
order.   To put ,it in other words, the detaining  authority
has  made its decision and passed its order.   The  detained
person  is then given an opportunity to urge his  objections
which  in cases of preventive detention  comes always  at  a
later  stage.  The grounds may have been  considered  suffi-
cient by the Government to pass its judgment.  But to enable
the  detained person to make his representation against  the
order,  further  details may be furnished to  him.   In  our
opinion,  this appears to be the true measure of the  proce-
dural rights of the detained person under article 22 (5).
  It  was argued that under article 22 (6)  the  authorities
are   permitted  to withhold facts which they  consider  not
desirable  to be disclosed in the public interest.   It  was
argued that therefore all other facts must be disclosed.  In
our  opinion that is not the necessary conclusion  from  the
wording of article 22 (6). It gives a right to the detaining
authority not to disclose such facts, but from that it  does
not  follow  that  what is not stated or  considered  to  be
withheld  on that ground must be disclosed and if  not  dis-
closed,  there is a breach of a fundamental right.   A  wide
latitude is left to the authorities in the matter of disclo-
sure.
   They  are given a special privilege in respect  of  facts
which are considered not desirable to be disclosed in public
interest.   As regards the rest, their duty is  to  disclose
facts so as to give the detained person the earliest  oppor-
tunity to make a representation against the order of  deten-
tion.
   On  behalf of the respondent, it was argued that  if  the
grounds of detention are vague or insufficiently clear there
will  result a failure to give him the earliest  opportunity
to make  a representation against the order of detention and
that  defect  in its turn must affect  the  satisfaction  on
which  the order of detention was made.  It was argued  that
just as a ground which is completely irrelevant, and  there-
fore,  in  law is no ground at all, could  not  satisfy  any
rational  person about the necessity for the order, a  vague
ground
183
which is insufficient to enable the detenue to make a repre-
sentation  would  similarly make the   order  of   detention
based  on  it, void.  In our opinion, this argument  is  un-
sound.   Although  the  ground may be good there  may  be  a
certain  indefiniteness  in its  statement.   Proceeding  on
the footing that there is some connection, i.e., the  ground
by  itself is not so convincingly irrelevant  and  incapable
of  bringing about satisfaction in any rational person,  the
question whether such ground can give rise to the  satisfac-
tion  required for making the order is outside the scope  of
the  inquiry of the court.  On the other hand, the  question
whether the vagueness or indefinite nature of the statements
furnished to the detained person is such as to give him  the
earliest opportunity to make a representation to the author-
ity  is  a  matter within the jurisdiction  of  the  court's
inquiry  and subject to the court's decision.   The  analogy
sought  to  be  drawn between a ground  which  can  have  no
connection  whatsoever with the order and a ground which  on
its  face has connection with the order but is not  definite
in its statement, is clearly  faulty.  The extreme position,
on  the other hand, that there is no connection between  the
ground to be furnished and the representation to be made  by
the detained person under article 22 (5) is equally unsound,
when  the object in furnishing the ground is kept  in  mind.
The  conferment  of  the  right  to  make  a  representation
necessarily  carries with it the obligation on the  part  of
the  detaining   authority to furnish  the   grounds,  i.e.,
materials  on  which the detention order was  made.  In  our
opinion, it is therefore clear that while there is a connec-
tion  between  the obligation on the part of  the  detaining
authority  to  furnish grounds and the right  given  to  the
detained person to  have an earliest opportunity to make the
representation,  the  test to be applied in respect  of  the
contents  of the grounds for the two purposes is quite  dif-
ferent.  As already pointed out, for the first, the test  is
whether it is sufficient to satisfy the authority.  For  the
second, the test is,
24
184
whether  it is sufficient to enable the detained  person  to
make the representation at the earliest opportunity.
  The argument advanced on behalf of the respondent mixes up
the  two rights given under article 22 (5) and  converts  it
into one indivisible right. We are unable to read article 22
(5)  in that way. As pointed out above, the two  rights  are
connected  by  the word "and". Furthermore, the use  of  the
words "as soon as may be" with the obligation to furnish the
grounds of the order of detention, and the fixing of another
time  limit, viz. the earliest opportunity, for  making  the
representation,  makes the two rights distinct.  The  second
right, as it is a right of objection, has to depend first on
the  service of the grounds on which the conclusion,   i.e.,
satisfaction of the Government about the necessity of making
the order, is based.  To that extent, and that extent alone,
the two are connected. But when grounds which have a ration-
al  connection with the ends mentioned in section a  of  the
Act  are supplied, the first condition is satisfied. If  the
grounds  are not sufficient to enable the detenue to make  a
representation, the detenue can rely on his second right and
if he likes may ask for particulars which will enable him to
make  the representation.  On an infringement of  either  of
these two rights the detained person has a right to approach
the  court and complain that there has been an  infringement
of his fundamental right and even if the infringement of the
second part of the right under article 22 (5) is established
he  is bound to be released by the court.  To treat the  two
rights mentioned in article 22 (s) as one is neither  proper
according to the language used, nor according to the purpose
for which the rights are given.
        The  contention that the grounds are vague  requires
some  clarification.  What is meant by vague ? Vague can  be
considered  as  the antonym of 'definite'.   If  the  ground
which  is supplied is incapable of being understood  or  de-
fined with sufficient certainty it can be called vague.   It
is not possible to state affirmatively more on the  question
of  what  is vague.  It must vary according to  the  circum-
stances of each case.  It is
185
however improper  to  contend  that a ground  is necessarily