dedol-hf/india-case-legal-rag huggingface dataset:
why in this article it should receive this peculiar meaning.
Article  31  which is also in Part III and  relates  to  the
fundamental  rights  in respect of property runs as  follows
:-
    "No  person  shall be deprived of his property  save  by
authority of law."
    It is obvious that in that clause "law" must mean enact-
ed law.  The object of dealing with property under a differ-
ent article appears more to provide the exceptions found  in
article 31 (2) to (6), rather than to give the word "law"  a
different  meaning  than the one given in  article  21.  The
world "established" according to the Oxford Dictionary means
"to fix, settle, institute or ordain by enactment or  agree-
ment."   The  word "established" itself suggests  an  agency
which  fixes the limits.  According to the  dictionary  this
agency can be either the legislature or an agreement between
the  parties.  There is therefore no justification  to  give
the meaning of "jus" to "law" in article 21.
    The  phrase "procedure established by law" seems  to  be
borrowed from article 31 of the Japanese Constitution.   But
other   articles of that  Constitution which expressly  pre-
serve other personal liberties in different clauses have  to
be  read together to determine the meaning of "law"  in  the
expression  "procedure established by law."  These  articles
of the Japanese Constitution  have  not  been   incorporated
in  the Constitution of India in the same language.   It  is
not  shown that the word "law" means "jus" in  the  Japanese
Constitution.  In the Japanese Constitution these
113
rights  claimed under the rules of natural justice  are  not
given  by  the   interpretation  of   the  words  "procedure
established  by law" in their article 31. The word "due"  in
the expression "due process of law" in the American  Consti-
tution  is  interpreted  to mean "just,"  according  to  the
opinion  of  the Supreme Court of U.S.A. That  word  imparts
jurisdiction  to the Courts to pronounce what is "due"  from
otherwise, according to law.  The deliberate omission of the
word "due" from  article  21 lends strength  to the  conten-
tion that the justiciable aspect of "law", i.e., to consider
whether it is reasonable or not by the Court, does not  form
part  of the Indian Constitution.  The omission of the  word
"due",  the limitation imposed by the word  "procedure"  and
the insertion of the word "established" thus brings out more
clearly the idea of legislative prescription in the  expres-
sion used in article 21.  By adopting the phrase  "procedure
established   by law" the Constitution gave the  legislature
the final word to determine the law.
    Our  attention  was drawn to The King  v.  The  Military
Governor of the Hair Park Camp ('), where articles 6 and  70
of  the Irish Constitution  are  discussed. Under article  6
it is provided that the liberty of the person is  inviolable
and  no person shall be deprived of such except "in  accord-
ance  with law"  ......In article 70 it is provided that  no
one shall be tried "save in due course of law" and  extraor-
dinary Courts were not permitted to  be  established  except
the Military  Courts to try military offences.  The  expres-
sion  "in accordance with law" was interpreted to  mean  not
rules  of   natural justice but as the law in force  at  the
time.   The Irish Court gave the expression "due  course  of
law"  the meaning given to it according to the  English  law
and not the American law.  It was observed by Lord Atkin  in
Eshugbayi Eleko v. Officer Administering the  Government  of
Nigeria  C), that in  accordance  with  British    Jurispru-
dence   no  member of the executive can interfere  with  the
liberty or property of a British subject except when he  can
support the legality of his act before a Court of justice.
(1) [1924] 2 Irish Reports K.B. 104.        (2) [1931]  A.C.
(62 at 670.
114
    In  The  King  v.  The  Secretary  of  State  for   Home
Affairs(1), Scrutton LJ. observed: "A man undoubtedly guilty
of murder must yet be  released if due forms of law have not
been  followed  in his conviction." It seems  very  arguable
that  in  the whole set-up of Part III of  our  Constitution
these principles only remain guaranteed by article 21.
    A  detailed discussion of the true limits of article  21
will not be necessary if article 22 is considered a code  to
the  extent  there are  provisions  therein  for  preventive
detention.   In this. connection it may be noticed that  the
articles  in  Part  III deal  with  different  and  separate
rights.   Under  the caption  "Right  to  Freedom"  articles
19--22  are grouped but each with a separate marginal  note.
It is obvious that article 22 (1) and (2) prescribe  limita-
tions  on the right given by article 21.  If  the  procedure
mentioned  in  those  articles is followed  the  arrest  and
detention  contemplated by article 22 (1) and (2),  although
they  infringe the personal liberty of the individual,  will
be legal, because that becomes the established legal  proce-
dure  in respect of arrest and detention. Article 22 is  for
protection  against arrest and detention in  certain  cases,
and runs as follows :--
    "22.  (1) No person who is arrested shall be detained in
custody  without being informed, as soon as may be,  of  the
grounds for such arrest nor shall he be denied the right  to
consult, and to be defended by, a legal practitioner of  his
choice.
    (2.) Every person who is arrested and detained in custo-
dy shall be produced before the nearest magistrate within  a
period  of  twenty-four hours of such arrest  excluding  the
time  necessary for the journey from the  place of    arrest
to the Court  of  the magistrate and no such person shall be
detained  in  custody  beyond the said  period  without  the
authority of a magistrate.
  (3)  Nothing in clauses (1) and (2) shall apply(a) to  any
person who for the time being is an enemy alien; or
  (1) (1923) 2 K.B. 361 at 382.
115
(b) to any person who is arrested or detained under any  law
providing for preventive detention.
    (4)  No  law providing for  preventive  detention  shall
authorize the detention of a person for a longer period than
three months unless-
    (a) an Advisory Board consisting of persons who are,  or
have been, or are qualified to be appointed as, Judges of  a
High  Court, has reported before the expiration of the  said
period  of three months that there is in its opinion  suffi-
cient cause for such detention:
    Provided that nothing in this sub-clause shall authorise
the  detention  of   any person beyond  the  maximum  period
prescribed  by any law made by Parliament  under  sub-clause
(b) of clause 17); or
    (b)  such  person  is detained in  accordance  with  the
provisions  of any law made by Parliament  under  subclauses
(a) and (b) of clause (7).
    (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, as soon as  may  be,
communicate  to such person the grounds on which  the  order
has been made and shall afford him the earliest  opportunity
of making a representation against the order.
      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.
(7) Parliament may by law prescribe-
    (a)  the  circumstances under which, and  the  class  or
classes  of cases in which, a person may be detained  for  a
period longer than three months under any law providing  for
preventive  detention  without obtaining the opinion  of  an
Advisory  Board  in accordance with the provisions  of  sub-
clause (a) of clause (4);
    (b) the maximum period for which any person may ,in  any
class or classes of cases be detained under any law  provid-
ing for preventive detention;  and
(c) the procedure to be followed by an Advisory Board in
an inquiry under sub-clause (a) of clause (4)."
    The learned Attorney-General contended that the  subject
of preventive detention does not fall under
116
article  21  at  all and is covered wholly  by  article  22.
According  to  him,  article 22 is a complete  code.   I  am
unable  to  accept that contention.  It is obvious  that  in
respect  of  arrest  and detention article 22  (1)  and  (2)
provide  safeguards.  These safeguards are excluded  in  the
case  of preventive detention by article 22 (3),  but  safe-
guards  in  connection with such detention are  provided  by
clauses  (4)  to (7) of the same article.  It  is  therefore
clear  that  article 21 has to be read  as  supplemented  by
article 22. Reading in that way the proper mode of construc-
tion will be that to the extent the procedure is  prescribed
by article 22 the same is to be observed; otherwise  article
21  will  apply.  But if certain procedural  safeguards  are
expressly  stated  as  not required, or  specific  rules  on
certain  points of procedure are prescribed,  it  seems  im-
proper  to interpret these points as not covered by  article
22 and left open for consideration under article 21. To  the
extent   the  points  are  dealt  with,   and  included   or
excluded,, article 22 is a complete code.  On the points  of
procedure  which expressly or by necessary  implication  are
not  dealt with by article 22, the operation of  article  21
will remain unaffected.  It is thus necessary first to  look
at  article 22 (4) to (7) and next at the provisions  0  the
impugned  Act to determine if the Act or any of  its  provi-
sions  are ultra vires.  It may be noticed that neither  the
American  nor the Japanese Constitution  contain  provisions
permitting  preventive  detention,. much  less  laying  down
limitations  on  such right of detention, in  normal  timeS,
i.e., without a declaration of emergency.  Preventive deten-
tion  in  normal times,. i.e., without the existence  of  an
emergency  like  war,. is recognised as a  normal  topic  of
legislation  in List I. Entry 9, and List III, Entry  3,  of
the  Seventh Schedule.  Even in the Chapter  on  Fundamental
Rights  article 22 envisages legislation in respect of  pre-
ventive detention in normal times. The provisions of article
22  (4)  to (7) by their very wording leave  unaffected  the
large  powers  of legislation on this  point  and  emphasize
particularly  by article 22 (7) the power of the  Parliament
to  deprive a person of a right to have his case  considered
by an advisory  board.  Part III and.
117
article  22 in particular are the only restrictions on  that
power and but for those provisions the power to legislate on
this subject would have been quite unrestricted.  Parliament
could have made a law without any safeguard or any procedure
for  preventive detention. Such an autocratic  supremacy  of
the legislature is certainly cut down by article 21.  There-
fore, if the legislature prescribes a procedure by a validly
enacted  law  and such procedure in the case  of  preventive
detention does not come in conflict with the express  provi-
sions of Part III or article 22 (4) to (7),  the  Preventive
Detention  Act must be held valid notwithstanding  that  the
Court  may  not fully approve of  the  procedure  prescribed
under such Act.
    Article  22 (4) opens with a double negative.  Put in  a
positive  form  it will mean that a law which  provides  for
preventive  detention for a period longer than three  months
shall  contain .a provision establishing an advisory  board,
(consisting of persons with the qualifications mentioned  in
sub-clause (a)), and which has to report before the  expira-
tion of three months if in its opinion there was  sufficient
cause for such detention. This clause, if it stood by itself
and  without  the remaining provisions of article  22,  will
apply  both  to the Parliament and the  State  Legislatures.
The proviso to this clause further enjoins that even  though
the  advisory  board may be of the opinion  that  there  was
sufficient cause for such detention, i.e., detention  beyond
the period of three months, still the detention is not to be
permitted  beyond the maximum period, if any, prescribed  by
Parliament under article 22 (7) (b). Again the whole of this
sub-clause  is  made inoperative by article 22  (4)  (b)  in
respect of an Act of preventive detention passed by  Parlia-
ment  under clauses (7) (a) .and (b).  Inasmuch as  the  im-
pugned  Act is an Act of the Parliament purported to  be  so
made, clause 22 (4) has no operation and may for the present
discussion  be kept aside. Article 22 prescribes  that  when
any person under a preventive detention law is detained, the
authority making the order shall, as soon as may be,  commu-
nicate  to such person the grounds on which . the order  has
been made and shall afford him the
118
earliest opportunity of making a representation against  the
order.  This  clause is of general operation in  respect  of
every  detention order made under any law permitting  deten-
tion.  Article 22 (6) permits the authority making the order
to withhold disclosure of facts which such authority consid-
ers  against  the public interest to disclose.   It  may  be
noticed that this clause only permits the non-disclosure  of
facts,  and reading clauses (5) and (6) together a  distinc-
tion  is  drawn  between facts  and  grounds  of  detention.
Article 22 (4) and (7) deal not with the period of detention
only  but with other requirements in the case of  preventive
detention  also.  They provide for the establishment  of  an
advisory  board, and the necessity of furnishing grounds  to
the detenue and also to give him a right to make a represen-
tation.  Reading article 22 clauses (4) and (7) together  it
appears  to  be implied that preventive detention  for  less
than three months, without  an advisory board, is  permitted
under  the  Chapter  on Fundamental  Rights,  provided  such
legislation  is  within the legislative  competence  of  the
Parliament or the State Legislature, as the case may be.
    Article  22  (5) permits the detained person to  make  a
representation.  The Constitution is silent as to the person
to  whom it has to be made, or how it has to be dealt  with.
But that is the procedure laid down by the Constitution.  It
does not therefore mean that if a law made by the Parliament
in  respect of preventive detention does not make  provision
on those two points it is invalid.  Silence on these  points
does  not  make  the impugned Act in  contravention  of  the
Constitution  because  the first question is  what  are  the
rights  given by the Constitution in the case of  preventive
detention. The contention that the representation should  be
to  an  outside  body has no support in law.   Even  in  the
Liversidge  case  the representation had to be made  to  the
Secretary  of  State and not to another  body.   After  such
representation  was  made,  another advisory  board  had  to
consider it, but it was not necessary to make the  represen-
tation  itself  to a third party.  Article 22  (4)  and  (7)
permit the non-establishment of an advisory board  expressly
in a  parliamentary  legislation-
119
providing  for preventive  detention  beyond  three  months.
If  so, how can it be urged that the nonestablishment of  an
advisory.  board  is  a fundamental right  violated  by  the
procedure prescribed in the Act passed by the Parliament?
The important clause to be considered is article 22 (7).
Sub-clause  (a) is important-for this case.  In the case  of
an Act of preventive detention passed by the Parliament this
clause contained in the Chapter on Fundamental Rights,  thus
permits  detention beyond a period of three months  and  ex-
cludes  the necessity of consulting an advisory  board,   if
the opening words of the sub-clause are complied with.  Sub-
clause  (b)  is  permissive.  It is not  obligatory  on  the
Parliament  to prescribe any maximum period. It  was  argued
that this gives the Parliament a right to allow a person  to
be detained indefinitely.  If that construction is  correct,
it springs out of the words of sub-clause (7) itself and the
Court cannot help in the matter.  Subclause (c) permits  the
Parliament  to lay down the procedure to be followed by  the
advisory board in an inquiry under sub-clause (a) of  clause
(4).  I am unable to accept the contention that  article  22
(4)  (a)  is the rule and article 22 (7) the  exception.   I
read  them as two alternatives provided by the  Constitution
for making laws on preventive detention.
    Bearing  in mind the provisions of article 22 read  with
article 246 and Schedule VII, List I, Entry 9, and List III,
Entry  3, it is thus clear that the Parliament is  empowered
to  enact  a  law of preventive detention  (a)  for  reasons
connected  with  defence,  (b) for  reasons  connected  with
foreign affairs, (c) for reasons connected with the security
of  India; and (under List III), (d) for  reasons  connected
with the security of a State, (e) for reasons connected with
the maintenance of public order, or (f) for reasons connect-
ed  with the maintenance of supplies and services  essential
to the community.  Counsel for the petitioner has challenged
the  validity of several provisions of the Act.  In  respect
of the construction of a Constitution Lord Wright
in James v. The Commonwealth   of Australia(1),
    (1) (1936) A. 0. 578 at 614.
    16
120
observed  that "a Constitution must not be construed in  any
narrow   and  pedantic  sense."  Mr.  Justice   Higgins   in
Attorney-General  of New South Wales v.  Brewery  Employees'
Union (1), observed: "Although we are to interpret words  of
the Constitution on the same principles of interpretation as
we  apply  to  any ordinary law, these  very  principles  of
interpretation compel us to take into account the nature and
scope of the Act that we are interpreting--to remember  that
it is a Constitution, a mechanism under which laws are to be
made  and not a mere Act which declares what the law  is  to
be."  In In re The Central Provinces and Berar Act   XIV  of
1938  ("'),  Sir  Maurice Gwyer C.J.  after  adopting  these
observations  said:  "especially is this true of  a  Federal
Constitution  with  its  nice balance  of  jurisdictions.  I
conceive  that  a broad and liberal  spirit  should  inspire
those  whose duty it is to interpret it; but I do not  imply
by  this that they are free to stretch or pervert  the  lan-
guage of the enactment in the interest of any legal or  con-
stitutional  theory  or even for the  purpose  of  supplying
omissions   or  of correcting supposed errors."   There   is
considerable authority for the statement that the Courts are
not  at  liberty  to declare an Act void  because  in  their
opinion  it is opposed to a spirit supposed to  pervade  the
Constitution  but not expressed in words.  Where the  funda-
mental law has not limited, either in terms or by  necessary
implication, the general powers conferred upon the  Legisla-
ture we cannot declare a limitation under the notion of hav-
ing discovered something in the spirit  of  the Constitution
which  is not even mentioned in the instrument. It is diffi-
cult upon any general principles to limit the omnipotence of
the  sovereign legislative power by judicial  interposition,
except so far as the express words of a written Constitution
give  that  authority.  It is also stated, if the  words  be
positive and without ambiguity, there is no authority for  a
Court  to vacate or repeal a Statute on that  ground  alone.
But it is only in express constitutional provisions limiting
legislative  power and controlling the temporary will  of  a
majority by a permanent and
(1) (1908) 6 Com. L.R. 469 at 611-12.   (2) (1939) F.C.R. 18
at 37.
121
paramount law settled by the deliberate wisdom of the nation
that one can find a safe and. solid ground for the authority
of Courts of justice to declare void ,any legislative enact-
ment.   Any assumption of authority beyond this would be  to
place in the hands of the judiciary powers too great and too
'indefinite  either for its own security. or the  protection
of private rights.
    It  was first  argued that by  section 3 the  Parliament
had delegated its legislative power to the executive officer
in detaining a person on his being satisfied of its necessi-
ty.   It  was  urged that the satisfaction must  be  of  the
legislative  body.   This contention of  delegation  of  the
legislative  power  in such cases has  been  considered  and
rejected  in numerous cases by our Federal Court and by  the
English  Courts.   It is unnecessary to refer to  all  those
cases.   A reading of the various speeches in Liversidge  v.
Anderson  clearly negatives this contention.  Section  3  of
the  impugned Act is no delegation of legislative  power  to
make  laws.   It only confers discretion on the  officer  to
enforce the law made by the legislature.  Section 3 is  also
impugned on the ground that it does not provide an objective
standard which the Court can utilize for determining whether
the  requirements  of law have been complied  with.   It  is
clear that no such objective standard of conduct can be pre-
scribed, except as laying down conduct tending to achieve or
to  avoid  a particular object.   For  preventive  detention
action must be taken on good suspicion.  It is a  subjective
test  based on the cumulative effect of  different  actions,
perhaps  spread over a considerable period. As  observed  by
Lord  Finlay  in The King v. Halliday (2), a  Court  is  the
least  appropriate  tribunal  to  investigate  the  question
whether  circumstances  of suspicion  exist  warranting  the
restraint  on a person.  The contention is urged in  respect
of preventive detention and not punitive detention.   Before
a person can be held liable for an offence it    is  obvious
that  he should be in a position to know     what he may  do
or not do, and an omission to do or not to do will result in
the State
(1) (1942) A.C. 2C6. (2) (1917) A.C. 260 at 269.
122
considering  him  guilty according to the  penal  enactment.
When  it  comes however to preventive  detention,  the  very
purpose is to prevent the individual not merely from  acting
in  a particular way but, as the sub-heads summarized  above
show,  from achieving a particular object.  It will  not  be
humanly possible to tabulate exhaustively all actions  which
may  lead  to a particular object.  It  has  therefore  been
considered that a punitive detention Act which  sufficiently
prescribes the objects which the legislature considers  have
not to be worked up to is. a sufficient standard to  prevent
the legislation being vague.  In my opinion, therefore,  the
argument of the petitioner against section 3 of the impugned
Act fails.  It was also contended that section 3  prescribes
no limit of time for detention and therefore the legislation
is  ultra vires. The answer is found in article 22 (7)  (b).
A  perusal  of the provisions of the impugned  Act  moreover
shows that in section 12 provision is made for detention for
a period longer than three months but not exceeding one year
in  respect  of  clauses (a) and (b) of  that  section.   It
appears therefore that in respect of the rest of the clauses
mentioned  in section 3 (1)(a)the detention is  not  contem-
plated  to be for a period longer than three months, and  in
such cases a reference to the advisory board under section 9
is contemplated.
    Section  7 of the Act which is next challenged, runs  on
the same lines as article 22 (5) and. (6) and in my  opinion
infringes  no provision of the Constitution. It  was  argued
that  this  gave only the right of making  a  representation
without being heard 'orally or without affording an opportu-
nity  to  lead  evidence and therefore was  not  an  orderly
course  of  procedure, as required by the rules  of  natural
justice.   The Parliament by the Act has expressly  given  a
right  to the person detained under a  preventive  detention
order  to  receive the grounds for detention  and  also  has
given  him  a right to make a representation.  The  Act  has
thus complied with the requirements of article 22 (s).  That
clause,  which prescribes what procedure has to be  followed