dedol-hf/india-case-legal-rag huggingface dataset:
remark  that "no calamitous or untoward result  will  follow
even   if   the  provisions  of  the   Penal   Code   become
justiciable."  I  am certain that no Court  would  interfere
with a Code which has been the law of the land for nearly  a
century and the provisions of which are not in conflict with
the  basic principles of any system of law.  It seems to  me
that this Court should not be deterred from giving effect to
a  fundamental right granted under the Constitution,  merely
because of a vague and unfounded fear that something  catas-
trophic may happen.
    I have so far proceeded on the assumption that the basis
of the objection raised by Meredith C.J. is correct in  law,
but,  in my opinion, it is not.  Crime has been  defined  to
consist  in  those acts or omissions involving breach  of  a
duty  to which a sanction is attached by law by way of  pun-
ishment  or pecuniary penalty in the public interests.  (See
Russell's  "Crimes and Misdemeanours ").  Section 2  of  the
Indian  Penal Code, 1860, provides that "every person  shall
be  liable to punishment under this Code' and not  otherwise
for every act or omission contrary to the provisions  there-
of, of which he shall be guilty within British India ."  The
Indian  Penal Code does not primarily or necessarily  impose
restrictions  on  the  freedom of movement, and  it  is  not
correct to say that it is a law imposing restrictions on the
right to move freely.  Its primary object is to punish crime
and not to restrict movement.  The punishment may consist in
imprisonment  or a pecuniary penalty.  If it consists  in  a
pecuniary, penalty, it obviously involves no restriction  on
movement;  but  if it consists in imprisonment, there  is  a
restriction  on  movement.  This restraint  is  imposed  not
under  a law imposing restrictions on movement but  under  a
law defining crime and making it punishable. The  punishment
is  correlated  directly with the violation  of  some  other
person's  right and not with  the right  of
(1) [1945] F.C.R. 161 at p. 177.
146
movement possessed by the offender himself.  In my  opinion,
therefore,  the Indian Penal Code does not come  within  the
ambit  of the words  "law imposing restriction on the  right
to move freely ".
    In the course of the arguments, the expression "punitive
detention"  was frequently used and the tendency was to  put
it  on  the  same footing as preventive  detention  for  the
purpose of certain arguments. Punitive detention is  however
essentially  different from preventive detention.  A  person
is  punitively detained only after a trial for committing  a
crime  and after his guilt has been established in a  compe-
tent  Court of justice.  A person so convicted can take  his
case to the State High Court and sometimes bring it to  this
Court  also;  and he can in the course  of  the  proceedings
connected  with  his trial take all pleas available  to  him
including  the plea of want of jurisdiction of the Court  of
trial and the invalidity of the law under which he has  been
prosecuted.   The final judgment in the criminal trial  will
thus constitute a serious obstacle in his way if he  chooses
to  assert  even after his conviction that his  right  under
article  19 (1) (d) has been violated.  But a person who  is
preventively  detained  has  not to face  such  an  obstacle
whatever other obstacle may be in his way.
    IV.   It was pointed out that article 19 being  confined
to  citizens,  the anomalous situation will follow  that  in
cases of preventive detention, a citizen will be placed in a
better position than a non-citizen, because if a citizen  is
detained his detention will be open to some kind of judicial
review  under article 19 (5), but if a non-citizen has  been
detained his case will not be open to such review.  In  this
view,  it is said that the whole Act relating to  preventive
detention, may be declared to be void if it is unreasonable,
though  it concerns citizens as well as persons  other  than
citizens.  I  must frankly state that I am not at  all  per-
turbed  by  this  argument.  It is a patent  fact  that  the
Constitution has confined all the rights mentioned in  arti-
cle  19 (1) to citizens.  It is equally clear that  restric-
tions on those rights are to a limited extent at least  open
to judicial review-  The very same question which is
147
raised in regard to article 19 (1)(d) will arise with regard
to  most of the other sub-clauses.  A citizen has the  right
to assemble peaceably and without arms, to form associations
or unions and so on.  If there is any law imposing unreason-
able restrictions on  any  of these rights,  that law   will
not be good law so far as citizens are concerned, but it may
be good law so far as non-citizens are concerned.  I do  not
see why a similar situation arising with regard to the right
granted  under sub-clause (d) should be stated to be  anoma-
lous.  So far as the right of free movement is concerned,  a
non-citizen has been granted certain protections in articles
21  and  22.  If a ,citizen has been granted  certain  other
additional protections under article 19 (1) (d), there is no
anomaly involved in the discrimination.  I think that it  is
conceivable that a certain law may be declared to be void as
against  a  citizen but not against a  non-citizen.  Such  a
result however should not affect our mind if it is found  to
have been clearly within the contemplation of the framers of
the Constitution.
    V.  It was contended that the rights declared by article
19  are the rights of a free citizen and if he  has  already
been  deprived of his liberty in the circumstances  referred
to  in articles 20, 21 and 22, then it would be idle to  say
that  he still enjoys the right referred to in  article  19.
After  giving my fullest consideration to this  argument,  I
have not been able to appreciate how it arises in this case.
There  is nothing in article 19 go suggest that  it  applies
only to those cases which do not fall under articles 20,  21
and  22. Confining ourselves to preventive detention, it  is
enough  to point out that a person who is  preventively  de-
tained  must have been, before he lost his liberty,  a  free
man.  Why  can't he say to those who detained  him:   "As  a
citizen  I  have  the right to move freely  and  you  cannot
curtail  or take away my right beyond the limits imposed  by
clause  (5)of article 19."  This is the only question  which
arises  in  the case and it should not be  obscured  by  any
abstruse or metaphysical considerations. It is true that  if
you put a man under detention, he cannot move and  therefore
he is not in a position to
148
exercise the right guaranteed under article 19 (1) (d).  but
this is only the physical aspect of the matter and a  person
who  is  bed-ridden  on account of disease  suffers  from  a
similar disability.  In law, however,. physical duress  does
not  deprive a person of the right to freedom  of  movement.
If he has been detained under some provision of law imposing
restrictions  on the freedom of movement, then the  question
will  arise whether the restrictions are reasonable.  If  he
has  been detained under no provision of law or  under  some
law which is invalid, he must be set at liberty.
    To  my mind, the scheme of the Chapter dealing with  the
fundamental  rights does not contemplate what is  attributed
to it, namely, that each article is a code by itself and  is
independent of the others.  In my opinion, it cannot be said
that articles 19, 20, 21 and 22 do not to some extent  over-
lap each other.  The case of a person who is convicted of an
offence  will come under articles 20 and 21 and  also  under
article  221 so far as his arrest and detention  in  custody
before trial are concerned.  Preventive detention, which  is
dealt  with  in article 22, also amounts to  deprivation  of
personal liberty which is referred to in article 21, and  is
a  violation of the right of freedom of movement dealt  with
in  article 19 (1) (d).  That there are other  instances  of
overlapping  of articles in the Constitution may  be  illus-
trated  by  reference to article 19 (1) (f) and  article  31
both  of which deal with the right to property and  to  some
extent  overlap  each other.  It appears that  some  learned
High  Court Judges, who had to deal with the  very  question
before  us, were greatly impressed by the statement  in  the
report of the Drafting Committee of the Constituent Assembly
on  article  15 (corresponding to the present  article  21),
that the word "liberty" should be qualified by the insertion
of  the  word "personal" before it for otherwise it  may  be
construed  very widely so as to include the  freedoms  dealt
with  in  article 13 (corresponding to the  present  article
19).  I am not however prepared to hold that this  statement
is decisive on the question of the construction of the words
used in article 19 (1) (d) which are quite plain and can  be
construed without any
149
extraneous help.  Whether the report of the Drafting Commit-
tee and the debates on the floor of the House should be used
at all in construing the words of a statute, which are words
of ordinary and common use and are not used in any technical
or peculiar sense, is a debatable question; and whether they
can be used in aid of a construction which is a strain  upon
the language used in the clause to be interpreted is a still
more doubtful matter.  But, apart from these legal consider-
ations, it is, I think, open to us to analyse the  statement
and  see whether it goes beyond adding a somewhat  plausible
reason--a  superficially  plausible  reason--for  a   slight
verbal change in article 21.  It seems clear that the  addi-
tion  of the word "personal" before "liberty" in article  21
cannot  change the meaning of the words used in article  19,
nor  can it put a matter which is inseparably bound up  with
personal  liberty  beyond its place.  Personal  liberty  and
personal freedom, in spite of the use of the word  "personal
,"  are,  as we find in several books, sometimes used  in  a
wide sense and embrace freedom of speech, freedom of  .asso-
ciation,  etc.  These rights are some of the  most  valuable
phases or elements of liberty and they do not cease to be so
by the addition of the word "personal." A general  statement
by  the  Drafting Committee referring to freedom  in  plural
cannot take the place of an authoritative exposition of  the
meaning  of the words used in article 19 (1)(d),  which  has
not  been  specifically referred to and cannot  be  such  an
overriding  consideration as to compel us to put  a  meaning
opposed  to reason and authority. The words used in  article
19  (1) (d) must be construed as they stand, and we have  to
decide  upon  the words themselves whether in the  .case  of
preventive  detention the right under article 19 (1) (d)  is
or  is  not  infringed.  But, as I shall  point  out  later,
however literally we may construe the words used in  article
19 (1) (d) and however restricted may be the meaning we  may
attribute  to those words, there can be no escape  from  the
conclusion  that preventive detention is a direct  infringe-
ment of the right guaranteed in article 19 (1) (d).
150
    Having  dealt with the principal objections, I  wish  to
revert  once again to the main topic. The expressions  "per-
sonal  liberty" and" personal freedom" have, as we  find  in
several books, a wider meaning and also a narrower  meaning.
In  the  wider sense,  they include not only  immunity  from
arrest and detention but also freedom of speech, freedom  of
association, etc.  In the narrower sense, they mean immunity
from  arrest and detention.  I have shown that the  juristic
conception of "personal liberty ," when these words are used
in  the sense of immunity from arrest, is. that it  consists
in freedom of movement and locomotion.  I have also  pointed
out that this conception is at the root of the criminal  law
of  England and of this country, so far as the  offences  of
false  imprisonment and wrongful confinement are  concerned.
The  gravamen of these offences is restraint on  freedom  of
movement. With these facts in view, I have tried to find out
whether  there is any freedom of movement known  in  England
apart from    personal liberty used in the sense of immunity
from  arrest and detention, but I find no trace of any  such
freedom.  In Halsbury's Laws of England (2nd Edition, volume
6,  page 391), the freedoms mentioned are the right to  per-
sonal  freedom (or immunity from detention or  confinement),
the  right to property, the right to freedom of speech,  the
right  of  public meeting, the right  of  association,  etc.
Similar classifications will be found in Dicey's  "Introduc-
tion  to  the  Study of the Law  of  the  Constitution"  and
Keith's  "Constitutional Law" and other books  on  constitu-
tional  subjects, but there is no reference anywhere to  any
freedom  or right of movement in the sense in which  we  are
asked  to. construe the words used in article 19  (1)  (d)..
In  the  Constitutions of America, Ireland  and  many  other
countries where freedom is prized, there is no reference  to
freedom  or  right of movement as  something  distinct  from
personal  liberty used in the sense of immunity from  arrest
and  confinement.  The obvious explanation is that in  legal
conception no freedom or right of movement exists apart from
what  personal  liberty connotes and  therefore  a  separate
treatment  of this freedom was not necessary. It is only  in
the Constitution of the Free
151
City  of Danzig, which covers an area of 701  square  miles,
that  we find these words in article 75 :--  "All  nationals
shall enjoy freedom of movement within the City."  There  is
however  no authoritative opinion available to  support  the
view  that this freedom is anything different from  what  is
otherwise called personal liberty.  The problem of construc-
tion in regard to this particular right in the  Constitution
of  Danzig is the same as in our Constitution.   Such  being
the  general  position, I am confirmed in my view  that  the
juristic  conception  that personal liberty and  freedom  of
movement  connote  the same thing is the  correct  and  true
conception, and the words used in article 10 (1) (d) must be
construed  according  to  this  universally  accepted  legal
conception.
    This conclusion is further supported by reference to the
war legislation in England and in India, upon which the  law
of  preventive  detention, which has been in force  in  this
country since the war, is based. In the first world war, the
British Parliament passed the Defence of the Realm  Consoli-
dation  Act, in 1914, and a number of regulations were  made
under  it including regulation  14-B,  which permitted   the
Secretary  of State to subject any person "to  such  obliga-
tions  and restrictions as hereinafter mentioned in view  of
his  hostile origin or associations."  Lord Atkin in  refer-
ring  to  this  regulation said in Liversidge  v.  Sir  John
Anderson  (1), "that the regulation undisputedly gave  to  a
Secretary of State unrestricted power to detain a  suspected
person."  Apparently, Lord Atkin meant that the  restriction
referred to in the Act included preventive detention.  Under
this  regulation,  one  Arthur Zadig was  interned,  and  he
applied  to  the King's Bench for a writ  of  habeas  corpus
which was refused. The matter ultimately came up before  the
House  of Lords in Rex v. Halliday (2), and the noble  Lords
in  dealing with the case proceeded on the  assumption  that
there was no difference between internment and incarceration
or  imprisonment.  Lord Shaw in narrating the facts  of  the
case stated :--
(1) [1942] A.C. 238.                 (2) [1917] A.C. 260.
20
152
      His person was seized, he has been interned  ......
The appellant lost his liberty and was interned  ......"
He then proceeded to state that there was no  difference
between internment and imprisonment and quoted the following
passage from Blackstone :--
    "The  confinement  of  the person, in any  wise,  is  an
imprisonment.  So that the keeping a man against his will in
a  private  house, putting him in the stocks,  arresting  or
forcibly detaining him in the street, is an imprisonment."
    Proceeding  on  this  footing (which I find  to  be  the
common  basis in all other speeches delivered in  the  case,
though  Lord  Shaw had given a  dissenting  judgment),  Lord
Finlay while dealing with the provisions of the  regulations
observed :--
    "One  of  the most obvious means of  taking  precautions
against  dangers  such as are enumerated is to  impose  some
restriction on the freedom of movement of persons whom there
may  be any reason to suspect of being disposed to help  the
enemy "(1).
    Again,  Lord Atkinson while dealing with the  merits  of
the case made the following observations :--
    "If  the  legislature chooses to enact that  he  can  be
deprived  of  his liberty and incarcerated or  interned  for
certain  things for which he could not have been  heretofore
incarcerated or interned, that enactment and the orders made
under  it  if intra vires do not infringe  upon  the  Habeas
Corpus  Acts  or  take away any  right  conferred  by  Magna
Charta  ......  ,, (2).
    This passage read with the previous passage quoted by me
will  show that both internment and incarceration  were  re-
garded as "restrictions on the freedom of movement "and that
deprivation  of liberty and restriction on freedom of  move-
ment  were used as alternative expressions bearing the  same
meaning.
    The  same conclusion is to be drawn by reference to  the
regulations  made in the last world war under the  Emergency
Powers  (Defence)Act,  1939. The regulation  which  directly
dealt-with detention orders was 18-B. This regulation and  a
number of other regulations have been placed in Part I under
the heading" Restrictions
(1) [1917] A.C. 269.                 (2) [1917] A.C. 272.
153
On  movements and activities of persons ."  The  classifica-
tion is important, because it meets two principal  arguments
advanced in this case.   It shows firstly that detention  is
a form of restriction and secondly that it is a  restriction
on  movement.   I have noticed that" movement"  is  used  in
plural,  and  the  heading also refers  to  restrictions  on
activities,  but, having regard to the  subjects  classified
under  this  head, movement undoubtedly refers  to  physical
movement and includes such movements as entering a  particu-
lar  locality, going from one place to another, etc.,  i.e.,
the very things to which article 19 (1) (d) is said to  have
reference.  In Liversidge's case, in construing  the  provi-
sions  of  the  Act of 1939, Viscount  Maugham  observed  as
follows :--
    "The  language  of the Act of 1939 (above  cited)  shows
beyond doubt that Defence Regulations may be made which must
deprive  the subject "whose detention appears to the  Secre-
tary  of  State to be expedient in the interests  of  public
safety" of all his liberty of movement while the regulations
remain in force"(1).
    Thus  Viscount Maugham also considered detention  to  be
synonymous with deprivation of liberty of movement.
    The  classification that we find in the Defence  of  the
Realm  Regulations  was with a  little  verbal  modification
adopted in the Defence of India Rules, and we find that here
also  rule 26,  which dealt with preventive  detention,  has
been placed  under the heading "Restriction of movements and
activities  of persons."  A somewhat similar  classification
has  also  been adopted in a series of Provincial  Acts  and
Ordinances  relating to maintenance of order [see section  2
of the Bihar Maintenance of Public Order. Act, 1949, section
16  of the West Bengal Security Act, 1948, section 4 of  the
East Punjab Public Safety Act, 1949, section 2 of the Madras
Maintenance of Public Order Act, 1947, section 3 of the U.P.
Maintenance of Public Order Temporary Act, 1947, and section
2  of  the Bombay Public Security Measures  Act,  1947.   In
these Acts and Ordinances, preventive detention and  certain
(1) [1942] A.C. 219.
154
other  forms of restriction on movement such as  internment,
externment,  etc. have been classed together and dealt  with
more  or less on the same footing, and sometimes  they  have
been dealt with in different clauses of the same section. In
one of the Acts, the same advisory board is to deal with the
case of a detenue as well as that of an externed person, and
there  are also similar provisions giving them the right  to
represent their case to the Government.
I  will  now assume for the sake of  argument  that  the
freedom of movement to which reference is made in article 19
(1) (d) has nothing to do with personal liberty and that the
words which occur in the article bear the restricted meaning
attributed to them by the learned Attorney-General and  some
of  my colleagues. It seems to me that even on this  assump-
tion, it is difficult to arrive at any conclusion other than
what  I have already arrived at. There can be no doubt  that
preventive detention does take away even this limited  free-
dom of movement directly and substantially, and, if so, I do
not see how it can be argued that the right under article 19
(1)  (d) is not infringed if the alternative  interpretation
is accepted.  We have only to ask ourselves:  Does a  person
who  is  detained retain even a fraction of his  freedom  of
movement in howsoever restricted sense the term may be  used
and does he not lose his right to move freely from one place
to  another  or visit any locality he likes as  a  necessary
result  of his detention ? I think I should refer here  once
more  to the fact that in the Defence of the  Realm  Regula-
tions  and Defence of India Rules, preventive  detention  is
classed  under  the heading "Restriction  of  movements  and
activities."   "Movement" is here used in plural and  refers
to that very type of movement which is said to be  protected
by  article  19 (1) (d), moving from one State or  place  to
another,  visiting  different localities, etc.  One  of  the
objects  of 'preventive detention is to restrain the  person
detained from moving from place to. place so that he may not
spread  disaffection or indulge in dangerous  activities  in
the'  places he visits.  The same consideration  applies  to
the cases of persons who are  interned or externed.   Hence,
externment,
155
internment  and certain other forms of restriction on  move-
ment  have always been treated as kindred matters  belonging
to  the same group or family and the rule which  applies  to
one must necessarily apply to the other.  It is difficult to
hold that the case of externment can possibly be dealt  with
on  a different footing from the case of  preventive  deten-
tion.   I am however interested to find that the  Patna  and
Bombay  High Courts have held that a person who is  externed
can successfully assert that the right granted to him  under
article 19 (1) (d) has been violated. This view has not been
seriously  challenged  before us, and, if it is  correct,  I
really do not see how it can be held that preventive  deten-
tion  is also not a direct invasion of the right  guaranteed
in  article 19 (1) (d).  Perhaps, one may pause here to  ask
what  kind of laws were in contemplation of the  framers  of
the  Constitution  when they referred to laws  imposing  re-
strictions in the public interest in article 19 (5). I think
the war laws and the Provincial Acts and Ordinances to which
I  have  already referred must have been among  them,  these
being laws which expressly purport to impose restrictions on
movements.  If  so,  we should not overlook  the  fact  that
preventive  detention was an inseparable part of these  laws
and  was  treated as a form of restriction on  movement  and
classified  as such. It seems to me that when the matter  is
seriously considered, it would be found that the interpreta-
tion of the learned Attorney-General attracts the  operation
of  article  13 (2) no less strongly and directly  than  the
interpretation  I  have suggested, and I prefer  the  latter
only because I consider that it is legally unsound to  treat
what  is  inseparably  bound up with and  is  the  essential
element  in  the  legal concept 1of personal  liberty  as  a