dedol-hf/india-case-legal-rag huggingface dataset:
the democratic countries of the world.  It was stated at the
Bar  that no such law was in force in the United  States  of
America.   In  England for the first time during  the  first
world  war certain regulations framed under the  Defence  of
the  Realm  Act  provided for preventive  detention  at  the
satisfaction of the Home Secretary as a war measure and they
ceased to have effect at the conclusion of hostilities.  The
same  thing  happened during thesecond world  war.   Similar
regulations were introduced during the period of the war  in
India  under  the Defence of India Act.  The  Government  of
India  Act,  1935, conferred authority on  the  Central  and
Provincial  Legislatures to enact laws on this  subject  for
the  first  time and since then laws on  this  subject  have
taken  firm  root here and have become a permanent  part  of
the  statute book of this country.  Curiously  enough,  this
subject has found place in the Constitution in the.
221
chapter on Fundamental Rights. Entry 9 of the Union List and
Entry  3 of the Concurrent List of the 7th Schedule  mention
the  scope of legislative power of Parliament in respect  of
this topic.  The jurisdiction, however, to enact these  laws
is  subject to the provisions of Part III of  the  Constitu-
tion.  Article 22 in this Part provides :--
     "(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 custody
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
      (b)  to any person who is arrested or  detained  under
any law providing for preventive detention.
    (4)  No  law providing for  preventive  detention  shall
authorise 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  pre-
scribed  by any law made by Parliament under sub-clause  (b)
of clause (7); or
(b)  such person is  detained in accordance  with  the
provisions  of any law made by Parliament under  sub-clauses
(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,  commu-
nicate  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.
(6)  Nothing in clause  (5) shall require the  authority
making  any such order as is referred to in that clause  to,
disclose facts which such authority considers to be  against
the public interest to disclose,
(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 preven-
tive 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  question  of  the constitutional  validity  of  the
impugned statute has to be approached with great caution  in
view  of these provisions of the Constitution and has to  be
considered with patient attention.  The benefit of  reasona-
ble  doubt has to be resolved in favour of  legislative  ac-
tion, though such a presumption is not conclusive-  It seems
that the subject of preventive detention became the particu-
lar  concern  of the Constitution because  of  its  intimate
connection  with deprivation of personal liberty to  protect
which  certain provisions were introduced in the Chapter  on
Fundamental Rights and because of the conditions  prevailing
in  the newly born Republic.  Preventive detention  means  a
complete  negation of freedom of  movement and  of  personal
liberty   and  is incompatible with both those subjects  and
yet  it is placed in the same compartment with them in  Part
III of the Constitution.
223
    Though  the Constitution  has  recognized the  necessity
of  laws  as to preventive detention it  has  also  provided
certain  safeguards to mitigate their harshness  by  placing
fetters  on  legislative power conferred  on  this  subject.
These are-
    (1) That no law can  provide for detention for a  period
of  more  than three months unless the sufficiency  for  the
cause of the detention is investigated by an advisory  board
within  the  said period of three  months.   This  provision
limits  legislative power in the matter of duration  of  the
period of detention.  A law of preventive detention would be
void if it permits detention for a longer period than  three
months without the intervention of an advisory board.
    (2)  That a State law cannot authorize detention  beyond
the maximum period prescribed by Parliament under the powers
given  to  it in clause (7).  This is a  limitation  on  the
legislative  power  of the State legislature.   They  cannot
make  a  law authorizing preventive detention for  a  longer
period than that fixed by Parliament.
    (3)  That Parliament also cannot make a law  authorizing
detention  for  a  period beyond three  months  without  the
intervention of an advisory board unless the law conforms to
the  conditions  laid  down in clause  (7)  of  article  22.
Provision  also has been made to enable Parliament  to  make
laws for procedure to be followed by advisory boards.   This
is a safeguard against any arbitrary form of procedure  that
may otherwise find place in State laws.
    Apart  from  these  enabling  and  disabling  provisions
certain procedural rights have been expressly safeguarded by
clause (5) of article 22.  A person detained under a law  of
preventive detention has a right to obtain information as to
the grounds of his detention and has also the right to  make
a  representation protesting against an order of  preventive
detention.  This right has been guaranteed independently  of
the duration of the period of detention and irrespective  of
the  existence  or non-existence of an advisory  board.   No
machinery, however, has been provided or expressly
29
224
mentioned for dealing with this representation.  It seems to
me that when a constitutional right has been conferred as  a
necessary consequence, a constitutional remedy for obtaining
redress  in case of infringement of the right must  be  pre-
sumed  to have been contemplated and it could not have  been
intended  that  the  right was merely illusory  and  that  a
representation  made  may well find place in  cold  storage.
Consideration of the representation made by virtue of clause
(5) by an unbiassed authority is, m my opinion, a  necessary
consequence  of the guaranteed right contained  herein.  The
right  has  been conferred to enable a  detained  person  to
establish  his innocence and to secure justice, and no  jus-
tice can be said to be secured unless the representation  is
considered by some impartial person. The interpretation that
I am inclined to place on clause (5) of article 22 is justi-
fied by the solemn words of the declaration contained in the
Preamble  to the Constitution.  It is this declaration  that
makes  our  Constitution sublime and it  is  the  guarantees
mentioned in the chapter on Fundamental Rights that make  it
one  of  the greatest charters of liberty and of  which  the
people, of this  country 'may well be proud.   This  charter
has  not been forced out of unwilling hands of  a  sovereign
like the Magna Carta but it has been given to themselves  by
the  people of the country through their Constituent  Assem-
bly.   Any interpretation of the provisions of Part  III  of
the  Constitution without reference to this solemn  declara-
tion is apt to lead one into error.  If the right of  repre-
sentation given to a detained person by clause (5) of  arti-
cle  22  is a guaranteed right and has been  given  for  the
purpose     of  securing justice, then it  follows  that  no
justice  can  be  held secured to him  unless  an  unbiassed
person considers the merits of the representation and  gives
his  opinion  on the guilt or the innocence of  the  persons
detained.  In my view, the right cannot be defeated or  made
elusive  by  presuming that the detaining  authority  itself
will consider the representation with an unbiassed mind  and
will render justice.  That would in a way make the  prosecu-
tor  a judge in the case and such a procedure is  repugnant.
to all notions
225
of  justice.   The Constitution has  further  curtailed  the
rights  given  in clause (5) by providing in  clause  (6)  a
privilege  on  the detaining authority of  witholding  facts
which  the said authority considers not in public  interests
to  disclose.   This privilege has been  conferred  for  the
security  of the State and possibly for the security of  the
Constitution  itself, but in view of these stringent  provi-
sions no additional clogs can be put on the proper consider-
ation  of the representation of the detained person by  pre-
suming  that  the detaining authority itself  will  properly
consider  the representation.  It has also to be  remembered
in  this context that a person-subjected to the law of  pre-
ventive detention has been deprived of the rights  conferred
on persons who become subject to the law of punitive  deten-
tion [vide clauses (1) and (2) of article 22].  He has  been
denied  the right to consult a lawyer or be defended by  him
and  he  can  be kept in detention  without  being  produced
before a magistrate.
    Having  examined  the provisions of article  22,  I  now
proceed  to consider the first question that  was  canvassed
before us by the learned Attorney-General, i.e., that  arti-
cle 22 of the Constitution read with the entries in the  7th
Schedule  was a complete Code on the subject  of  preventive
detention, and that being so, the other articles of Part III
could not be invoked in the consideration of the validity of
the impugne'd statute. It was conceded by the learned  coun-
sel  for  the  petitioner that to the  extent  that  express
provisions  exist in article 22 on the topic  of  preventive
detention  those provisions would prevail and could  not  be
controlled  by  the other provisions of Part III.   It  was,
however,  urged  that on matters on which this  article  had
made no special provision on this topic the other provisions
of  Part  III of the Constitution had  application,  namely,
articles  10  and 21 and to that extent laws  made  on  this
subject  were justiciable.  In order to draw  the  inference
that the framers of the Constitution intended the provisions
as  regards preventive detention in article 22 to  be  self-
contained a clear indication of such an intention has to  be
gathered.  If the provisions embodied in this  article  have
dealt
226
with all the principal questions that are likely to arise in
matters  of procedure or on questions of the  reasonableness
of the period of detention, the inference of such an indica-
tion  would be irresistible.  Ordinarily when a  subject  is
expressly  dealt with in a constitution in some  detail,  it
has  to  be assumed that the intention was  to  exclude  the
application  of  the general provisions  contained   therein
elsewhere.   Express mention of one thing is an exclusion of
the  other.  Expressio unius est exclusio alterius.    I  am
satisfied  on a review of the whole scheme of the  Constitu-
tion  that  the intention was to make article  22  self-con-
tained  in respect of the laws on the subject of  preventive
detention.   It was contended that all the articles  in  the
Constitution should be read in an harmonious manner and  one
article  should  not be read as standing by  itself  and  as
having  no  connection with the other articles in  the  same
part.   It was said that they were all supplementary to  one
another.   In this connection it was argued that a law  made
under article 22 would not be valid unless it was in  accord
with the provisions of article 21 of the Constitution.  This
article provides that no person shall be deprived of life or
liberty'  except according to procedure established by  law.
It  was  contended that in substance the article  laid  down
that  no person will be deprived of life or liberty  without
having  been given a fair trial or a fair hearing  and  that
unless a law of preventive detention provided such a hearing
that law would be in contravention of this article and  thus
void.   Conceding  for the sake of argument   (but   without
expressing   any opinion  on  it )  that   this   contention
of   the  learned     counsel  is   correct,  the   question
arises  whether    there  is anything in  article  22  which
negatives  the application of article 21 as above  construed
to a law on preventive detention.  In my opinion, sub-clause
(5) of article 22 read with clauses (1) and (2) leads to the
inference that the contention raised by the learned  counsel
is  unsound.  Clause (5), as already stated,  provides  that
notice  has  to be given to a detenu of the grounds  of  his
detention. It also provides a limited hearing inasmuch as it
gives him an opportunity to
227
establish his innocence.  As, in my opinion, the  considera-
tion  of  a representation made by a detained person  by  an
unbiassed  authority is implicit in clause (5) it  gives  to
the  detained  person all that he is entitled to  under  the
principles of natural justice.  The right to consult and  to
be  represented  by a counsel of his own   choice  has  been
denied  in express terms to such a person by  the  Constitu-
tion.  He is also denied an opportunity of appearing  before
a magistrate.  When the Constitution has taken away  certain
rights  that  ordinarily  will be possessed  by  a  detained
person and in substitution thereof certain other rights have
been  conferred on him even in the matter of procedure,  the
inference is clear that the intention was to deprive such  a
person  of the right of an elaborate procedure usually  pro-
vided for in judicial proceedings.  Clause (6) of article 22
very  strongly supports this conclusion.  There  would  have
been  no point in laying down such detailed rules of  proce-
dure  in  respect of a law of preventive  detention  if  the
intention was that such a law would be subject to the provi-
sions  of article 21 of the Constitution.  In  its  ultimate
analysis  the argument of the learned counsel for the  peti-
tioner  resolves itself to this: that the  impugned  statute
does not provide for an impartial tribunal for a  considera-
tion  of  the representation of the detained person  and  to
this  extent it contravenes article 21 of the  Constitution.
As  discussed  above, in ray opinion, such  a  provision  is
implicit  within  article 22 itself and that being  so,  the
application of article 21 to a law made under article 22  is
excluded.
    It was next contended that a law of preventive detention
encroaches  on the right of freedom of movement  within  the
territory of India guaranteed to a citizen under article  19
(1)  (d) and that being so, by reason of the  provisions  of
sub-clause  (5)  of  article 19 it was  justiciable  on  the
ground  of reasonableness.  It is true, as  already  pointed
out, that a law of preventive detention is wholly incompati-
ble  with  the right of freedom of movement  of  a  citizen.
Preventive  detention  in  substance is a  negation  of  the
freedom  of locomotion guaranteed under article  19 (1)  (d)
but it cannot be said that it merely restricts it.  Be  that
as it may, the
228
question  for consideration is whether it was intended  that
article  19 would govern a law made under the provisions  of
article  22.   Article 19 (5) is a saving  and  an  enabling
provision.   It empowers Parliament to make a  law  imposing
reasonable  restriction on the right of freedom of  movement
while article 22 (7) is auother enabling provision  empower-
ing  Parliament to make a law on the subject  of  preventive
detention  in certain circumstances.  If a law  conforms  to
the  conditions laid down in 'article 22 (7), it would be  a
good  law and it could not have been intended that that  law
validly made should also conform itself to the provisions of
article 19 (5).  One enabling provision cannot be considered
as  a safeguard against another enabling provision.  Article
13  (2) has absolutely no application in such  a  situation.
If the intention of the constitution was that a law made  on
the subject of preventive detention had to be tested on  the
touchstone  of reasonableness, then it would not have  trou-
bled  itself  by expressly making provision  in  article  22
about  the precise scope of the limitation subject to  which
such  a  law could be made and by mentioning  the  procedure
that the law dealing with that subject had to provide.  Some
of the provisions of article 22 would then have been  redun-
dant, for instance, the provision that no detention can last
longer  than  three  months without the  necessity  of  such
detention being examined by an advisory board.  This  provi-
sion negatives the idea that the deprivation of liberty  for
a  period  of three months without the consultation  of  the
advisory board would be justiciable on the ground of reason-
ableness. Again article 22 has provided a safeguard that  if
an  advisory board has to be dispensed with, it can only  be
so  dispensed with under a law made by Parliament  and  that
Parliament  also  in enacting such a law has to  conform  to
certain conditions.  This provision would have' been  unnec-
essary in article 22 if a law on this subject was  justicia-
ble.   In  sub-clause  (b) of  clause  (7) of   article   22
provision   has   been  made  enabling  Parliament  to   fix
the    maximum                 period for  which  a   person
can   be  detained                  under a law on the  sub-
ject of preventive detention.             Under
229
this  express provision it is open to Parliament to fix  any
period,  say,  even  a period of five to ten  years  as  the
maximum  period  of detention of a person.  Can it  be  said
that  in view of this express provision of the  Constitution
such  a  law  was intended to be justiciable  by  reason  of
article  19  (5) ? Duration of detention  is  the  principal
matter in preventive detention laws which possibly could  be
examined  on the touchstone of reasonableness under  article
19  (5),  but this has been expressly  excluded  by  express
provisions  in  article 22. In my  judgment,  therefore,  an
examination of the provisions of article 22 clearly suggests
that the intention was to make it self-contained as  regards
the  law of preventive detention and that the validity of  a
law  on the subject of preventive detention cannot be  exam-
ined or controlled either by the provisions of article 21 or
by  the provisions of article 19 (5) because article 13  (2)
has no application to such a situation and article 22 is not
subject to the provisions of these two articles. The Consti-
tution in article 22 has gone to the extent of even  provid-
ing that Parliament may by law lay down the procedure to  be
followed by an advisory board. On all important points  that
could  arise  in connection with the subject  of  preventive
detention  provision  has been made in article 22  and  that
being so, the only correct approach in examining the validi-
ty  of  a law on the subject of preventive detention  is  by
considering whether the law made satisfied the  requirements
of article 22 or in any way abridges or contravenes them and
if  the answer is in the affirmative, then the law  will  be
valid,  but if the answer is in the negative, the law  would
be void.
In  expressing  the view that article 22 is in  a  sense
self-contained  on the law of preventive detention I  should
not however be understood as laying down that the framers of
the  article in any way overlooked the safeguards laid  down
in  article 21.  Article 21, in my opinion. lays  down  sub-
stantive law as giving protection to life and liberty  inas-
much as it says that they cannot be deprived except  accord-
ing to the procedure established by law; in other words,  it
means  that before a person can be deprived of his  life  or
liberty
230
as a condition precedent there should exist some substantive
law  conferring  authority for doing so and the  law  should
further  provide for a mode of procedure for  such  depriva-
tion.   This  article gives complete' immunity  against  the
exercise  of  despotic power by the executive.   It  further
gives  immunity  against invalid laws which  contravene  the
Constitution.   It gives also further guarantee that in  its
true concept there should be some form of proceeding  before
a  person can be condemned either in respect of his life  or
his liberty.  It negatives the idea of fantastic,  arbitrary
and oppressive forms of proceedings.  The principles  there-
fore underlying article 21 have been kept in view in  draft-
ing  article 22.  A law properly made under article  22  and
which  is valid in all respects under that article and  lays
down  substantive as well as adjective law on  this  subject
would fully satisfy the requirements of article 21, and that
being so, there is no conflict between these two articles.
    The  next question that arises for decision  is  whether
there  is anything in Act IV of 1950 which  offends  against
the  provisions of article 22 of Part III of  the  Constitu-
tion.   The  learned counsel  for the  petitioner  contended
that  section  3  of the Act was bad  inasmuch  as  it  made
"satisfaction  of the Government" as the criterion  for  de-
taining  a person.  It was said that as section 3 laid  down
no objective rule of conduct for a person and as people were
not  told  as to what behaviour was expected  of  them,  the
result was that it could not be known what acts a person was
expected to avoid and what conduct on his part was  prejudi-
cial  to  the security of the State or the  maintenance  of'
public  order; in other words, it was argued that section  3
left  the  determination of the prejudicial  act       of  a
person to the arbitrary judgment of the Government and  that
even  the  officer who was to administer this law  had  been
furnished no guide and no standard of conduct in arriving at
his own satisfaction whether the conduct was prejudicial  to
the  security  of  the State etc.   This  criticism  of  the
learned  counsel,  in my opinion, is not valid,   It  is  no
doubt  true that a detention order depends on the  satisfac-
tion of the'
231
Government but this  provision is in accordance with article
22  of   the   Constitution which to  my  mind  contemplates
detention  on the satisfaction of the  executive  authority.
By  its  very  nature the subject is such  that  it  implies
detention  on the judgment of the authority  entrusted  with
the  making of the order.  The whole intent and  purpose  of