dedol-hf/india-case-legal-rag huggingface dataset:
an undesirable and cumbersome process and wholly  unsuitable
for  the  exceptional situation to which  the  law  applies.
Perhaps a simple illustration may  make  the position  still
clearer.  Under  the Lists,  one of the  subjects  on  which
Parliament  may  make  a  law  of  preventive  detention  is
"matter  connected  with  the maintenance  of public order."
The  Act simply repeats this phraseology and states in  sec-
tion  3:  "with a view to preventing him (the person  to  be
detained)  from acting in a manner prejudicial to the  main-
tenance of public order."  This may be all right for section
3,  but section 12 must go further.  An act prejudicial  to.
the maintenance of public order may be an ordinary act or it
may  be an act of special gravity.  I think that article  22
(7)(a) contemplates that the graver and
178
more  heinous types of acts falling within the  category  of
acts  prejudicial  to the maintenance of  public  order  (or
other  heads) should be prescribed so as to define and  cir-
cumscribe the area of an exceptional piece of legislation.
    That  some kind of sub-classification (if I may be  per-
mitted to use this word) of the categories A to F was possi-
ble  can be illustrated by reference to regulation 18-]3  of
the  British Defence of the Realm Regulations. This  regula-
tion  was  made under an Act of 1039 which  authorized  "the
making  of  regulations for the detention of  persons  whose
detention appears to the Secretary of State to be  expedient
in  the  interests of public safety or the  defence  of  the
realm."  The two matters "public safety" and "defence of the
realm" are analogous to some of the heads stated in Lists  I
and  III.  It will be instructive to note that  under  these
two heads, regulation 18-B has set forth several subheads or
class  or  classes of cases in  which  preventive  detention
could be ordered.  These classes are much more specific than
what we find in section a of the impugned Act and  therefore
there is less chance of misuse by the executive of the power
to  order  preventive detention.  The classes  set  out  are
these :--(1) If the Secretary of State has reasonable  cause
to  believe any person to be of hostile origin  or  associa-
tions, (2) if the Secretary of State has reasonable cause to
believe  any person to have been recently concerned in  acts
prejudicial to the public safety or the defence of the realm
or  in the preparation or instigation of such acts,  (3)  if
the  Secretary of State has reasonable cause to believe  any
person to have been or to be a member of, or to have been or
to be active in the furtherance of the objects of, any  such
organization  as is hereinafter mentioned  ......   (a)  the
organization is subject to foreign influence or control, (b)
the persons in control of the organization have or have  had
associations  with, persons concerned in the government  of,
or  sympathies with the system of government of,  any  Power
with  which His Majesty is at war, and in either case  there
is  danger of the utilization of the organization  for  pur-
poses  prejudicial  to the public safety, etc., (4)  if  the
Secretary
 of  State has reasonable cause to believe that  the  recent
conduct of any person for the time being in an area or   any
words recently written or spoken by such a person expressing
sympathy with the enemy, indicates or indicate that   person
is likely to assist the enemy. I have only to point out that
the scope within which preventive detention can be legislat-
ed upon in this country is much larger than the scope  indi-
cated  in  the British Act under which Regulation  18-B  was
framed, and therefore there is more scope for  specification
of  the  circumstances as well as the class  or  classes  of
cases under the impugned Act. But all that has been done  is
that  words which occur in the legislative Lists  have  been
taken and transferred into the Act.
    What  I have stated with regard to class or  classes  of
cases also applies to the circumstances which are also to be
prescribed  under article 22 (7) (a).   These  circumstances
are  intended to supply the background or setting  in  which
the  dangerous activities of  dangerous persons might  prove
specially harmful.  They must be special circumstances which
demand a specially drastic measure and under which reference
to an advisory board might defeat the very object of preven-
tive  action.   The evident meaning of article  22  (7)  (a)
seems  to be that the picture will not be  complete  without
mentioning both the classes and the circumstances. There was
some discussion at the Bar as to what kind of  circumstances
might have been specified.  It is not for me to answer  this
question,  but  I apprehend that an impending  rebellion  or
war,  serious  disorder  in a particular area  such  as  has
induced  the Punjab Government to declare certain  areas  as
"disturbed  areas," tense communal situation, prevalence  of
sabotage or widespread political dacoities and a variety  of
other matters might answer the purpose the Constitution  had
in view.
    I  will now try to sum up the result of a somewhat  pro-
tracted  discussion  into  which I had to  enter  merely  to
clarify  the  meaning of a very important provision  of  the
Constitution  which  has,  in my  opinion,  been  completely
misunderstood  by the  framers of  the
180
impugned  Act.  It appears to me that article 22 deals  with
three classes of preventive detention :--
(1) preventive detention for three months;
    (2)  preventive detention for more than three months  on
the report of the advisory board; and
(3)  preventive  detention for more  than  three  months
without reference to the advisory board.
    If one has to find some kind of a label for these class-
es  for a clear understanding of the subject, one may  label
them  as  "dangerous,"   "more dangerous" and "most  danger-
ous."   Now so far as the first two classes  are  concerned,
there  is  nothing to be prescribed under  the  Constitution
Apparently,  the authors of the Constitution were  not  much
concerned  about class No. (1), and they thought that in  so
far  as  class No. (2) was concerned the  provision  that  a
reference  to the advisory board was necessary coupled  with
the  provision that detention was not to exceed the  maximum
period which may be fixed by the Parliament was enough.  But
they did take care to make a special provision for class No.
(3),  and  it is extermly important for the liberty  of  the
subject  as well as for the smooth working of the  Constitu-
tion  that this provision should not be lightly treated  but
should  receive a well considered  and reasonable  construc-
tion.   It  is elementary that the rigour of  a  law  should
correspond  to or fit the gravity of the evil or  danger  it
aims at combating, and it is also evident that the law which
the Parliament has been permitted to enact under article  22
(7)  (a)  can, so far as rigour is concerned, go  to  the  I
farthest  limit.   It follows that the law  must  have  been
intended for exceptionally grave situations and  exigencies.
Hence the authors of the Constitution have made it necessary
that  the Parliament should put certain specifications  into
the  Act which it is empowered to pass under article 22  (7)
(a), so that by means of these specifications the  necessity
for enacting so drastic a law should be apparent on the face
of it, and its application should be confined to the classes
and  circumstances  specified. The Act  must  prescribe  (1)
"c]ass  or classes of cases" which are to have reference  to
the persons.
181
against whom the law is to operate and their activities  and
movements  and  (2) "circumstances" which would  bring  into
prominence the conditions and the backgrounds against  which
dangerous  activities should call for special measures.   By
means  of  such two-fold prescription, the  sphere  for  the
application  of the law will be confined only to  a  special
type of cases--it will be less vague, less open to abuse and
enable  those who have to administer it to determine  objec-
tively when a condition has arisen to justify the use of the
power  vested in them by the law.   This, in my opinion,  is
the true meaning and significance of article 22 (7) (a)  and
any  attempt  to  whittle it down will  lead  to  deplorable
results.
    Having stated my views as to the construction of article
22 (7) (a), I propose to consider at once whether section 12
of  the  impugned Act conforms to the requirements  of  that
provision.  In my opinion, it  does not, because it fails to
prescribe  either the circumstances or the class or  classes
of  cases  in the manner required by the  Constitution.   It
does  not  prescribe circumstances at all,  and,  though  it
purports to prescribe the class or classes, it does so in  a
manner  showing that the true meaning of the provision  from
which the Parliament derived its power has not been grasped.
I have sufficiently dwelt on this part of the case and shall
not  repeat what I have already said. But I must  point  out
that  even  if it be assumed that the view advanced  by  the
learned  Attorney-General is correct and it was  within  the
competence  of  Parliament to treat any  of  the  categories
mentioned in items 9 and 3 of Lists I and III as  constitut-
ing  a class and to include it without any qualification  or
change, the impugned section cannot be saved on account of a
two-fold error :--. (1) the word "and" which links "class or
classes" with "circumstances" in article 22 (7) (a) has been
wrongly  construed  to mean "or ;" and (2)  the  distinction
between  "circumstances" and "class  or  classes"  has  been
completely  ignored  and they are  used  as  interchangeable
terms.  The first error appears to me to be quite a  serious
one, because though the Constitution lays down two  require-
ments and insists
182
on the prescription of  circumstances  as  well as class  or
classes,  it  has been assumed in enacting section  12  that
prescription of one of them only will be enough.  The  other
error  is  still more serious and goes to the  root  of  the
matter.  There can be no doubt that circumstances and  class
or classes are two different expressions and have  different
meanings,  but the Act proceeds on the assumption that  cir-
cumstances  are  identical with class or  classes,  as  will
appear  from  the words "any person detained in any  of  the
following  classes  of cases or under any of  the  following
circumstances"  used in the section.  I have  already  shown
how  important  the  specification of  circumstances  is  in
legislation of such an extreme and drastic character. There-
fore, to confuse "classes" with "circumstances" and to  omit
to  mention "circumstances" at all are in my  opinion  grave
errors.   There  can, in my opinion, be no escape  from  the
conclusion that section 12 of the Act by which a most impor-
tant protection or safeguard conferred on the subject by the
Constitution has been taken away, is not a valid  provision,
since it contravenes the very provision in the  Constitution
under  which the Parliament derived its competence to  enact
it.
    I will now briefly deal with article 22 (5) which  makes
it incumbent on  the  authority  ordering preventive  deten-
tion  to communicate to the person detained the  grounds  on
which  the order has been made and to give him the  earliest
opportunity of making a representation against the order. It
must be remembered that this provision is intended to afford
protection  to and be a safeguard in favour of   a  detained
person,  and it cannot be read as limiting any rights  which
he has under the law or any other provisions of the  Consti-
tution.  If  article 21 guarantees that before a  person  is
deprived of his liberty he must be allowed an opportunity of
establishing  his  innocence before an  impartial  tribunal,
that  right  still remains. In point of fact,  there  is  no
express  exclusion of that right in the Constitution and  no
prohibition against constituting an impartial tribunal.   On
the other hand, the right to make a representation which has
183
been granted under the Constitution,  must carry with it the
right to the representation being  properly considered by an
impartial person or persons.  There must  therefore  be some
machinery   for properly examining the cases of the  detenus
and  coming  to the conclusion that they have not  been  de-
tained  without  reason.  If this right had  been  expressly
taken away by the Constitution, there would have been an end
of the matter, but it has not been expressly taken away, and
I am not prepared to read any implicit deprivation of such a
valuable right.  The mere reference to an advisory board  in
article  22 (4) (a) does not,  if my interpretation  of  the
provision is correct,  exclude the constitution of a  proper
machinery for the purpose of examining the cases of  detenus
on  merits.  The constitution of an advisory board  for  the
purpose of reporting whether a person should be detained for
more than three months or not is a very different thing from
constituting a board for the purpose of reporting whether  a
man  should  be detained for a single day.  In  the  view  I
take,  all that Parliament could do under clause (7) (a)  of
article  22 was to dispense with an advisory board  for  the
purpose  contemplated in clause (4) (a) of that article  and
not to dispense with the proper machinery, by whichever name
it may be called, for the purpose of examining the merits of
the case of a detained person.
    It  was argued that article 22 is a code by  itself  and
the whole law of preventive detention is to be found  within
its four corners.  I cannot however easily subscribe to this
sweeping  statement. The article does provide for some  mat-
ters of procedure, but it does not exhaustively provide  for
them.  It is said that it provides for notice, an opportuni-
ty  to the detenu to represent his case, an  advisory  board
which  may  deal with his case, and for the  maximum  period
beyond which a person cannot be detained.  These points have
undoubtedly  been touched, but it cannot be said  that  they
have  been exhaustively treated.  The right to represent  is
given,  but  it is left to the legislature  to  provide  the
machinery for dealing with the representation.  The advisory
board has been mentioned, but
24
184
it  is only to safeguard detention for a period longer  than
three  months.   There is ample latitude still left  to  the
Parliament, and if the Parliament makes use of that latitude
unreasonably,  article  19 (5) may enable the Court  to  see
whether it has transgressed the limits of reasonableness.
    I will now proceed to deal with the Act in the light  of
the  conclusions I have arrived at.  So far as section 3  of
the  Act  is  concerned, it was contended that  it  is  most
unreasonable,  because it throws a citizen at the  mercy  of
certain  authorities,  who may at their own will  order  his
detention and into whose minds we cannot probe to see wheth-
er  there is any foundation for the subjective  satisfaction
upon which their action is to rest.  I am however unable  to
accept  this argument.  The administrative  authorities  who
have  to  discharge their responsibilities have to  come  to
quick decisions and must necessarily be left to act on their
own judgment. This principle is by no means unreasonable and
it  underlies  all the preventive  or  quasi  administrative
measures  which  are to be found in the  Criminal  Procedure
Code.   Under  section 107 of that code, it is left  to  the
discretion of the magistrate concerned to determine  whether
in  his  opinion there is sufficient ground  for  proceeding
against any person who is likely to occasion a breach of the
peace.  Under section 145 also, his initial  action  depends
upon  his  personal satisfaction. Therefore I  do  not  find
anything wrong or unconstitutional in section 3 of the  Act.
But I must point out that it is 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.
I do not also find anything radically wrong in section 7
of  the Act, which makes it incumbent on the authority  con-
cerned  to communicate to a detenu the grounds on which  the
order has been made and to
185
afford him the earliest opportunity of making a  representa-
tion  against the order. Section 10 which provides that  the
advisory  board shall make its report within ten weeks  from
the date of the detention order is in conformity with  arti-
cle  22  (4) (a) of the Constitution, and the  only  comment
which one can make is that Parliament was not obliged to fix
such a long period for the submission of a report and  could
have  made it shorter in ordinary cases.  The real  sections
which  appear to me to offend the Constitution are  sections
12  and 14.  I have already dealt with the principal  objec-
tion  to  section  12, while discussing  the  provisions  of
article  22 (7) (a) and I am of the opinion that section  12
does  not conform to the provisions of the Constitution  and
is  therefore ultra vires.  I also think that even if it  be
held  that it technically complies with the requirements  of
article  22  (7) (a), Parliament has acted  unreasonably  in
exercising its discretionary power without applying its mind
to  essential matters and thus depriving the detenus of  the
safeguard  of an advisory board which the  Constitution  has
provided  in  normal cases.  So far as section  14  is  con-
cerned,  all my colleagues have held it to be  ultra  vires,
and, as I agree with the views expressed by  them, I do  not
wish  to  encumber my judgment by      repeating in  my  own
words  what  has been said so      clearly and  so  well  by
them.  Section 14 may be     severable from the other provi-
sions  of  the Act and it may not be possible to  grant  any
relief  to the petitioner on the ground that section  14  is
invalid.  But I think that section 12 goes to the very  root
of  the legislation inasmuch as it deprives a detenu  of  an
essential  safeguard,  and in my opinion the  petitioner  is
entitled  to a writ of habeas corpus on the ground  that  an
essential  provision of the Constitution has not  been  com-
plied  with.  This writ will of course be without  prejudice
to  any action which the authorities may have taken  or  may
hereafter take against the petitioner under the penal law  I
have  to add this qualification because there  were  allega-
tions  of his being involved in some criminal cases but  the
actual facts were not clearly brought out before us.
186
    I have only to add a few concluding remarks to my  judg-
ment.   In  studying the provisions of the impugned  Act,  I
could  not  help  instituting a comparison in  my  own  mind
between  it  and similar legislation in England  during  the
last  two world wars.  I could not also help  noticing  that
the impugned Act purports to be a peacetime Act, whereas the
legislation to which I have referred was enacted during  the
war. During the first war as well as the second, a number of
persons were detained and a number of cases were brought  to
Court in connection with their detention, but the two  lead-
ing  cases which will be quoted again and again are  Rex  v.
Halliday (1) and Liversidge v. Sir John Anderson(2).  We are
aware that in America certain standards which do not conform
to  ordinary and normal law have been applied by the  Judges
during the period of the war and sometimes they are  compen-
dionsly  referred to as being included in "war power."   The
two  English cases to which I have referred also  illustrate
the  same principle, as will appear from two short  extracts
which  I  wish to reproduce.  In Rex v. Halliday  (3),  Lord
Atkinson  observed  as  follows :--"  However  precious  the
personal  liberty of the subject may be, there is  something
for  which  it may well be, to some  extent,  sacrificed  by
legal  enactment, namely, national success in the'  war,  or
escape from national plunder or enslavement."
    In Liversidge v. Sir John Anderson (4),  Lord  Macmillan
struck the same note in these words :--
    "The  liberty  which we so 'justly extol is  itself  the
gift  of the law and as Magna Charta recognizes may  by  the
law  be  forfeited  or abridged. At a time when  it  is  the
undoubted law of the land that a citizen may by conscription
or requisition be compelled to give up his life and all that
he  possesses  for  his country's cause it may  well  be  no
matter  for  surprise that there should be confided  to  the
Secretary of State a discretionary power of  enforcing   the
relatively  mild  precaution  of detention."
(1) [1917] A.C.260.           (3) [1917] A.C. 260atp. 271.
  [1942]  A.C.  206.             (4) [1942] A.C. 206  at  p.
257.
187
    These  passages represent the majority view in  the  two
cases, but the very elaborate judgments of Lord Shaw in  Rex
v. Halliday and that of Lord Atkin in Liversidge v. Sir John
Anderson show that there. was room for difference of opinion
as  well as for a more dispassionate treatment of  the  case
and the points involved in it.  It is difficult to say  that
there is not a good substratum of sound law in the celebrat-
ed  dictum of Lord Atkin that even amidst the clash of  arms
the  laws are not silent and that they speak the  same  lan-
guage  in war as in peace. However that may be, what I  find
is that in the regulations made in England during the  first
war as well as the second war there was an elaborate  provi-
sion  for an advisory board in all cases without any  excep-
tion,   which provided a wartime safeguard for  persons  de-
prived  of their liberty. There was also a provision in  the
Act  of  1939 that the Secretary of State should  report  at
least  once in every month as to the action taken under  the
regulation  including the number of persons  detained  under
orders  made  thereunder.  I find that  these  reports  were
printed and made available to the public.  I also find  that
the Secretary of State stated in the House of Commons on the
28th January, 1943, that the general order would be to allow
British  subjects  detained  under the  Regulation  to  have
consultations  with their legal advisers out of the  hearing
of  an  officer.  This order applied to  consultations  with
barristers and solicitors but not to cases where  solicitors
sent  to interview a detained person a clerk who was not  an
officer of the High Court. The impugned Act suffers in  com-
parison,  on account of want of such provisions, though,  so
far  as  I can see, no great harm was likely  to  have  been
caused by setting up a machinery composed of either adminis-
trative  or judicial authorities for examining the cases  of
detained persons so as to satisfy the essentials of fairness
and  justice.  The Act also suffers in comparison with  some
of  the later Provincial Acts in which the safeguard  of  an
advisory  board  is , expressly provided for.  I  find  that
there  is a provision in section 12 (2) of the Act  for  the
review of the cases of detenus after six months, but this is
quite different
188
from examining the merits of the case.  The object of such a
review  is  obviously to find out whether by reason  of  any
change in the circumstances, a review of the original  order
is required.
    I hope that in pointing out the shortcomings of the  Act
I  will not be misunderstood.  I am aware that both in  Eng-
land and in America and also in many other countries,  there
has  been a reorientation of the old notions  of  individual
freedom  which  is gradually yielding to social  control  in
many  matters.  I also realize that those who run the  State
have very onerous responsibilities, and it is not correct to
say  that  emergent conditions have  altogether  disappeared
from  this country. Granting then that private  rights  must
often  be subordinated to the public good, is it not  essen-