dedol-hf/india-case-legal-rag huggingface dataset:
not  provide an objective standard for  determining  whether
the  requirements of law have been complied with, is  not  a
ground for holding that it is invalid. FAZL ALI J.---Section
3 is however a reasonable provision only for the first step,
i.e., for arrest and initial detention and must be  followed
by  some  procedure  for testing  the  so-called  subjective
satisfaction, which can be done only by providing a suitable
machinery  for examining the grounds on which the  order  of
detention is made and considering the representations of the
persons detained in relation to those grounds.
    Per KANIA C. J., MAHAJAN and DAS JJ.---Section 7 of  the
said  Act is not invalid merely because it does not  provide
for  an oral hearing or an opportunity to lead evidence  but
only gives right to make a representation.  Right to an oral
hearing  and  right  to give evidence  are  not  necessarily
implied in the right to make a representation given by  Art.
22.
Per KANIA C.J., and MAHAJAN J.--The provision  contained
in Sec. 11 that a person may be detained for such period  as
the
12-A
92
State  thinks fit does not contravene Art. 22 (7) and it  is
not therefore invalid.
    Per  KANIA. C.J., PATANJALI SASTRI, MUKHERJEA  and   DAS
JJ.  (FAZL ALI and MAHAJAN JJ. dissenting).--Article 22  (7)
means that Parliament may prescribe either the circumstances
under  which, or the class or classes of cases in  which,  a
person may be detained for a period longer than three months
without reference to an advisory board. It is not  necessary
that  the  Parliament should prescribe  both.   The  matters
referred  to in clauses (a) and (b) of sub-see. (1) of  Sec.
12 constitute a sufficient description of such circumstances
or classes of cases and Section 12 is not therefore open  to
the objection that it does not comply with Art. 22 (7)   DAS
J.--Parliament  has in act and substance prescribed both  in
clauses (a) and (b) of sub-sec. (1) of Sec. 12.
     FAZL ALI and MAJAN JJ.--Article 22 (7) Means that  both
the  circumstances and the class or classes of cases  (which
are  two different expressions with different  meanings  and
connotations) should be prescribed, and the prescription  of
one  without the other will not be enough.  The  enumeration
of  the subjects for reasons connected with which a  law  of
preventive detention could be made contained in els. (a) and
(b) of sub-see. (1) of Sec.12 does not amount to prescribing
the  circumstances under which, or the class or  classes  of
cases in which, a person can be detained for more than three
months.
    Per  KANIA  C.J.--While it is not proper  to  take  into
consideration the individual opinions of members of  Parlia-
ment  or Convention to construe the meaning of a  particular
clause,  when a question is raised whether a certain  phrase
or  expression  was up for consideration at all  or  not,  a
reference  to  the  debates may  be  permitted.   PATANJAYLI
SASTRI J.--In construing the provisions of an Act,  speeches
made  in the course of the debates on the bill  should   not
be  taken  into consideration.  MUKHERJEA J.--In  construing
the  Constitution it is better to leave out of  account  the
debates in the Constituent Assembly, but a higher value  may
be placed on the report of the Drafting Committee.
JUDGMENT:
    ORIGINAL JURISDICTION: Petition No. XIII of 1950.
    Application  under  Art. 32 (1) of the  Constitution  of
India  for a writ of habeas corpus against the detention  of
the appellant in the Madras jail in pursuance of an order of
detention  made  under the Preventive Detention  Act,  1950.
The material facts of the case and arguments of counsel  are
set out in detail in the judgments.  The relevant provisions
of the Preventive Detention Act, 1950, are printed below.
93
    1.   Short title, extent and duration.--This Act may  be
called the Preventive Detention Act, 1950.
(2) It extends to the whole of India  .....
(3)  It shall cease to have effect on the 1st day of  April,
1951,  as respects things done or omitted to be done  before
that date.
    2.  Definitions.--In this Act, unless the context other-
wise requires,--
    (a)  "State Government" means, in relation to a Part C
State, the Chief Commissioner of the State; and
     (b)  "detention  order"  means  an  order   made  under
Section 3.
      3.    Power   to   make   orders   detaining   certain
persons.--(1) The Central Government or the State Government
may---
     (a) if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial
to--
      (i)  the  defence  of India, the  relations  of  India
foreign power, or the security of India, or
      (ii)  the security of the State or the maintenance  of
public order, or
      (iii) the maintenance of supplies and services to  the
community, or
     (b)  if satisfied with respect to any person who  is  a
foreigner  within  the meaning of the Foreigners  Act,  1946
(XXXI of 1946), that with a view to regulating his continued
presence in India or with a view to making arrangements  for
his expulsion from India
   it  is necessary so to do, make an order  directing  that
such person be detained.
   (2) Any District Magistrate or Sub-Divisional Magistrate,
or  Presidency-town,  the Commissioner of  Police,  may,  if
satisfied provided  in sub-clauses (ii) and (iii) of  clause
(a) of sub-section (1), exercise the power conferred by  the
said sub-section.
   (3)  When any order is made under this section by a  Dis-
trict Magistrate, Sub-Divisional Magistrate or  Commissioner
of  Police, he shall forthwith report the fact to the  State
Government  to  which he is subordinate  together  with  the
grounds  on  which the order has been made  and  such  other
particulars as in his opinion have a bearing on the necessi-
ty for the order.
   7.   Grounds  of order of detention to  be  disclosed  to
persons  affected  by the order.--(1) When a person  is  de-
tained  in  pursuance of a detention  order,  the  authority
making  the order shall, as soon as may be,  communicate  to
him the grounds on which the order his been made, and  shall
afford him the earliest opportunity of making a  representa-
tion against the order, in a case where such order has  been
made by the Central Government, to that Government, and in a
case  where  it has been made by a State  Government  or  an
officer subordinate thereto, to the State Government.
94
    11.  Confirmation of detention order.--In any case where
the Advisory Board has reported that* there is in Rs opinion
suffcient  cause for the detention of the person  concerned,
the Central Government or the State Government. as the  case
may  be,  may confirm the detention order and  continue  the
detention  of  the person concerned for' such period  as  it
thinks fit.
    12.   Duration of detention in certain  cases.--(1)  Any
person detained in any of the following classes of cases  or
under  'my  of the following circumstances may  be  detained
without  obtaining  the opinion of an Advisory Board  for  a
period longer than three months, but not exceeding one  year
from  the date of his detention, namely, where  such  person
has been detained wish 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.      *      *      *
   14.   Disclosure  of grounds of detention,  etc.--(1)  No
court shall, except for the purpose of a prosecution for  an
offence punishable under sub-section (9,), allow any  state-
ment  to be made, or any 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 notwithstanding 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 communication or representation made,  or  the
proceedings  of an Advisory Board or that par of the  report
of an Advisory Board which is confidential.
   (2)  It shall be an offence punishable with  imprisonment
for 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  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.
M. K. Nambiar (S. K. Aiyar and V.G. Rao, with him) for the
petitioner.
   K.   Rajah   Aiyar,   Advocate-General of Madras  (C.  R.
Pattabi  Raman and R. Ganapathi, with him) lot the State  of
Madras.
   M.C.  Setalvad,  Attorney-General for  India  (Jindralal,
with him) for the Union of India.
95
    1950. May 19.  The following Judgments were delivered.
    KANIA  C. J--This is a petition by the  applicant  under
article  32 (1) of the Constitution of India for a  writ  of
habeas corpus against his detention in the Madras Jail.   In
the  petition he has given various dates showing how he  has
been under detention since December, 1947.  Under the  ordi-
nary Criminal Law he was sentenced to terms of  imprisonment
but  those convictions were set aside.  While he  was  tires
under detention under one of the orders of the Madras  State
Government, on the 1st of March, 1950, he was served with an
order  made under section 3 (1) of the Preventive  Detention
Act,   IV of 1950.  He challenges the legality of the  order
as  it  is  contended that Act IV of  1950  contravenes  the
provisions  of articles 13, 19 and 21 and the provisions  of
that  Act are not in accordance with article 22 of the  Con-
stitution.  He has also challenged the validity of the order
on  the ground that it is issued mala fide.  The  burden  of
proving that allegation is on the applicant.  Because of the
penal  provisions  of  section 14 of the  impugned  Act  the
applicant  has not disclosed the grounds, supplied  to  him,
for  his  detention and the question of mala  fides  of  the
order therefore cannot be gone into under this petition.
    The  question  of  the validity of Act IV  of  1950  was
argued before us at great length.  This is the first case in
which  the different articles of the Constitution  of  India
contained in the Chapter on Fundamental Rights has come  for
discussion before us.  The Court is indebted to the  learned
counsel for the applicant and the Attorney-General for their
assistance in interpreting the true meaning of the  relevant
clauses of the Constitution.
    In  order  to  appreciate the rival  contentions  it  is
useful  first  to  bear in mind the general  scheme  of  the
Constitution.   Under  article 53 of  the  Constitution  the
executive power of the Union is vested in the President  and
is to be exercised by him in accordance with the
96
Constitution either directly or through officers subordinate
to  him.   The legislative powers of the Union  are  divided
between the Parliament and Legislatures of the States.   The
ambit  and limitations on their respective powers are  found
in  article 246 read with article 245, Schedule  VII,  Lists
1,2  and 3 of the Constitution. For the Union of  India  the
Supreme Court is established and its powers and jurisdiction
are  set out in articles 124 to 147.  This follows the  pat-
tern  of  the Government of India Act, 1935, which  was  the
previous  Constitution of the Government of  India.   Unlike
the  American Constitution, there is no article vesting  the
judicial  power of the Union of India in the Supreme  Court.
The  material points substantially altering the edifice  are
first  in  the  Preamble which declares  india  a  Sovereign
Democratic  Republic to secure to all its citizens  justice,
liberty and equality and to promote among them all,  frater-
nity.  Part III of the Constitution is an important  innova-
tion.  It is headed "Fundamental Rights."  In that Part  the
word  "State" includes both the Government of the Union  and
the Government of the States. By article 13 it is  expressly
provided  that all laws in force in the territory of  India,
immediately before the commencement of the Constitution,  in
so far as they are inconsistent with the provisions of  this
Part, to the extent of such inconsistency, are void.  There-
fore, all laws in operation in India on the day the  Consti-
tution  came  into  force, unless otherwise  saved,  to  the
extent they are inconsistent with this Chapter on  Fundamen-
tal Rights, become automatically void. Under article 13  (2)
provision  is  made for legislation after  the  Constitution
comes  into operation. It is there provided that  the  State
shall  not  make any law which takes away  or  abridges  the
rights conferred by this Part and any law made in contraven-
tion  of this clause shall to the extent of  the  contraven-
tion,  be  void.  Therefore, as regards  future  legislation
also the Fundamental Rights in Part III have to be respected
and, unless otherwise saved by the provisions of the Consti-
tution, they will be void to the extent they contravene  the
provisions of Part III.  Under article 245 (1) the  legisla-
tive powers conferred under
97
article 246 are also made "subject to the provisions of this
Constitution,"  which  of course includes Part  III  dealing
with the Fundamental Rights.  The term law in article 13, is
expressed  to  be wide enough to include  Acts,  Ordinances,
Orders,  Bye-laws,  Rules, Regulations and  even  custom  or
usage  having, in the territory of India, the force of  law.
The rest of this Part is divided in seven divisions.  "Right
to Equality" is found in articles 14-18, "Eight to  Freedom"
in articles 19-22, "Right against Exploitation" in  articles
23 and 24, "Right to Freedom of Religion" in articles 25-28,
"Cultural  and  Educational Rights" in articles 29  and  30,
"Right  to Property" in article 31 and "Right  to  Constitu-
tional  Remedies"  in articles 32-35.  In this case  we  are
directly concerned only with the articles under the  caption
"Right  to  Freedom" (19-22) and article 32  which  gives  a
remedy  to enforce, the rights conferred by this Part.   The
rest  of  the articles may have to be referred  to  only  to
assist  in the interpretation of the  above-mentioned  arti-
cles.
    It  is  obvious that by the insertion of this  Part  the
powers  of  the Legislature and the Executive, both  of  the
Union  and the States,  are further curtailed and the  right
to  enforce  the Fundamental Rights found in Part III  by  a
direct application to the Supreme Court is removed from  the
legislative  control.  The wording of article 32 shows  that
the  Supreme Court can be moved to grant a suitable  relief,
mentioned  in article 32 (2), only in respect of the  Funda-
mental Rights mentioned in Part III of the Constitution.
    The petitioner is detained under a preventive  detention
order,  made under Act IV of 1950, which has been passed  by
the  Parliament  of India.  In the Seventh Schedule  of  the
Constitution,   List I contains entries specifying items  in
respect  of which the Parliament has  exclusive  legislative
powers.   Entry 9 is in these terms:  "preventive  detention
for  reasons connected with Defence, Foreign Affairs or  the
Security  of  India; persons subjected to  such  detention."
List  III of that Schedule enumerates topics on  which  both
the Union and the States have concurrent legislative
98
powers.  Entry 3 of that List is in these terms: "Preventive
detention  for  reasons  connected with the  security  of  a
State, the maintenance of public order or the maintenance of
supplies  and services essential to the  community;  persons
subjected to such detention." It is not disputed that Act IV
of  1950 is covered by these two Entries in List I and  List
III  of the Seventh Schedule.  The contention of  the  peti-
tioner  is  that the impugned legislation  abridges  or  in-
fringes  the rights given by articles 19-21 and is also  not
in accordance with the permissive legislation on  preventive
detention  allowed  under  articles 22 (4) and  (7)  and  in
particular  is an infringement of the provisions of  article
22  (5).   It is therefore necessary to consider  in  detail
each of these articles and the arguments advanced in respect
thereof.
    Article  19 is for the protection of certain  rights  of
freedom to citizens.  It runs as follows :--
   "19. (1)--All citizens shall have the right-(a) to  free-
dom 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.
    "(2)  Nothing  in  sub-clause (a) of  clause  (1)  shall
affect  the  operation of any existing law in so far  as  it
relates to, or prevent the State from making any law  relat-
ing to, libel, slander, defamation, contempt of court or any
matter  which offends against decency or morality  or  which
undermines  the  security  of, or tends  to  overthrow,  the
State.
    (3)  Nothing in sub-clause (b) of the said clause  shall
affect  the  operation of any existing law in so far  as  it
imposts, or prevent the State from making any law  imposing,
in the interests of public order
99
reasonable  restrictions on the exercise of the  right  con-
ferred by the said sub-clause.
    (4)  Nothing in sub-clause (c) 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,
in  the  interests of public order or  morality,  reasonable
restrictions  on the exercise of the right conferred by  the
said sub-clause.
    (5) 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.
(6)  Nothing in sub-clause (g) 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,
in the interests of the general public, reasonable  restric-
tions  on  the exercise of the right conferred by  the  said
sub-clause,  and,  in particular, nothing in the  said  sub-
clause shall affect the operation of any existing law in  so
far as it prescribes or empowers any authority to prescribe,
or  prevent  the State from making any  law  prescribing  or
empowering  any authority to prescribe, the professional  or
technical  qualifications necessary for practising any  pro-
fession or carrying on any occupation, trade or business."
    Clause (2) specifies the limits up to which the abridge-
ment- of the right contained in 19 (1) (a) may be permitted.
it is an exception.  Similarly clause (3) sets out the limit
of  abridgement  of the right in 19 (1) (b) and  clause  (4)
specifies such limits in respect of the right in 19 (1) (c).
Clause  (5) is in respect of the rights mentioned in 19  (1)
(d), (e) and (f) and clause (6) is in respect of the  rights
contained  in  19 (1) (g). It cannot be  disputed  that  the
articles collected under the caption "Right to Freedom" have
to  be considered together to appreciate the extent  of  the
Fundamental  Rights.  In the first place it is necessary  to
notice that
100
there is a distinction between rights given to citizens  and
persons.   This is clear on a perusal of the  provisions  of
article 19 on the one hand and articles 20, 21 and 22 on the
other.  In order to determine whether a right is abridged or
infringed  it is first necessary to determine the extent  of
the  right  given by the articles and the  limitations  pre-
scribed  in the articles themselves permitting its  curtail-
ment.   The inclusion of article 13 (1) and (2) in the  Con-
stitution appears to be a matter of abundant caution.   Even
in  their  absence,  if any of the  fundamental  rights  was
infiringed  by  any  legislative enactment,  the  Court  has
always the power to declare the enactment, to the extent  it
transgresses the limits, invalid.  The existence of  article
13 (1) and (2) in the Constitution therefore is not material
for the decision of the question what fundamental right is
given  and to what extent it is permitted to be abridged  by
the Constitution itself.
As the preventive detention order results in the  deten-
tion  of  the applicant in a cell it was  contended  on  his
behalf that the rights specified in article 19 (1) (a), (b),
(c),  (d), (e) and (g) have been infringed.  It  was  argued
that because of his detention he cannot have a free right to
speech  as  and where he desired and the same  argument  was
urged  in  respect of the rest of the  rights  mentioned  in
sub-clauses (b), (c), (d), (e) and (g). Although this  argu-
ment  is  advanced  in a case which  deals  with  preventive
detention,  if correct, it-should be applicable in the  case
of punitive detention also to any one sentenced to a term of
imprisonment under the relevant section of the Indian  Penal
Code.  So considered, the argument must clearly be rejected.
In spite of the saving clauses (2)to(6) permitting  abridge-
ment  of  the rights connected with each of  them,  punitive
detention  under several sections of the Penal  Code,  e.g.,
for theft, cheating, forgery and even ordinary assault, will
be  illegal.   'Unless such conclusion  necessarily  follows
from  the  article,  it is obvious  that  such  construction
should  be avoided.  In my opinion, such result  is  clearly
not the outcome of the Constitution.  The article has to  be
read without any pre-conceived notions.  So read, it clearly
means
101
that  the  legislation to be examined must  be  directly  in
respect  of one of the rights mentioned in  the  subclauses.
If  there is a legislation directly attempting to control  a
citizen's  freedom of speech or expression, or his right  to
assemble  peaceably  and without arms,  etc.,  the  question
whether  that  legislation is saved by the  relevant  saving
clause of article 19 will arise.  If, however, the  legisla-
tion  is not directly in respect of any of  these  subjects,
but as a result of the operation of other legislation,   for
instance,   for punitive or preventive detention, his  right
under  any of these subclauses is abridged, the question  of
the  application  of article 19 does not  arise.   The  true
approach is only to consider the directness of the  legisla-
tion and not what will be the result of the detention other-
wise  valid,  on the mode of the detenue's  life.   On  that
short  ground,  in my opinion, this argument about  the  in-
fringement of the rights mentioned in article 19 (1)  gener-
ally must fail.  Any other construction put on the  article,
it seems to me. will be unreasonable.
    It  was  next urged that while this  interpretation  may
meet  the contention in respect of rights under  article  19
(1)  (a), (b), (c), (e) and (g), the right given by  article
19  (1)  (d) is left untouched.  That  sub-clause  expressly
gives the right "to move freely throughout the territory  of
India."  It was argued that by the confinement of the  peti-
tioner  under  the preventive detention order his  right  to
move  freely throughout the territory of India  is  directly
abridged  and  therefore the State must  show that  the  im-
pugned  legislation imposes only reasonable restrictions  on
the  exercise of that right in the interests of the  general