dedol-hf/india-case-legal-rag huggingface dataset:
still  be a "representation ", within the meaning of  clause
(5).   This  shows that no precise connotation  can  be  at-
tributed      to      the     terms      "grounds"      and"
re-  presentation"  as used in clause (5),  for  in  certain
cases  at least, the one can be vague and the  other  inade-
quate   from  the point of view of the person detained  and,
on a question of construction they need not be different  in
other cases.
    It  was  suggested in the course of  the  argument  that
clause  (5) dealt with two distinct and independent matters,
namely,  (1) the communication of the grounds of  detention,
and (2) the affording of an opportunity to make a  represen-
tation against the detention, and that the grounds  communi-
cated need not have any necessary relation to the  represen-
tation provided for. the right to make a representation,  it
was  said, imported, by implication, an independent  obliga-
tion  on  the part of the authority to  furnish  the  person
detained  with  sufficient particulars and  details  of  the
accusation  against  him apart from and in addition  to  the
obligation expressly imposed on the authority to communicate
the grounds on which the order has been made, for the reason
that  without such particulars     no adequate or  effective
representation could be made' against the order, and  though
the sufficiency of the Grounds on which the order was  based
had been held not to be open to judicial examination,  there
was no reason why the sufficiency of the further  communica-
tion implied in the provision for representation should  not
be  justiciable.   The different time-limits fixed  for  -he
performance  of  the  duties imposed by clause  (5)  on  the
detaining authority are said to support this argument.   The
construction  suggested  is,  in my  opinion,  strained  and
artificial  and cannot be accepted. The collocation  in  the
same  clause of the right to be informed of the  grounds  of
detention and the right to make a representation against  it
indicate,  to my mind, that the grounds communicated are  to
form  the basis of the representation and, indeed,  are  in-
tended  mainly, if not solely, for that purpose. To  suggest
that, apart from those grounds, and right of making a repre-
sentation
197
imports,  by necessary implication, a further obligation  to
give such details and particulars as would render that right
effective is, in my opinion, not to' construe the clause  in
its  natural  meaning but to stretch it by  the  process  of
implication,  so as to square, with one's  preconceived  no-
tions of justice and fairplay. No support for this construc-
tion  can  be derived from the provision  of  distinct  time
limits for the communication of the grounds and the  afford-
ing  of opportunity for representation. as that can  be  ex-
plained by the different degrees of urgency required in  the
two  cases. The grounds are to be communicated "as  soon  as
may  be" which means as soon as possible and imports a  much
higher  degree of urgency than what is implied in  affording
the "earliest opportunity" which, I take it, means affording
writing  and  communication facilities to the  person  under
detention  as  soon as he is ready and desires to  make  the
representation.
While  clause  (5) does not allow the  authority,  after
making the order of detention and communicating the  grounds
of such order, to put forward fresh grounds in justification
of that order, I can find nothing in that clause to preclude
the authority furnishing particulars or details relating  to
the  grounds originally  communicated, or the  person  under
detention availing himself of such particulars and making  a
better  or a further representation.  Nor is there  anything
to  prevent  such person from asking for, or  the  authority
from  providing,  further and better  particulars  of  those
grounds where it is in a position to do so.  But the attempt
in  these  and similar proceedings has always  been  not  to
secure  the necessary particulars but to shift the arena  of
the  contest to the court which, as Lord Finlay remarked  in
the  case  already  referred to, is  the  least  appropriate
tribunal  for investigating what must largely be matters  of
suspicion  and  not proof and which, for that  very  reason,
might  afford the relief hoped for without being in  posses-
sion of all the facts.
    Reference  was  made to the decisions  of  several  High
Courts dealing with the necessity of furnishing  particulars
of the grounds of detention. But those decisions
198
turned  on the provisions of the various  Provincial  Public
Safety Acts which were passed before the commencement of the
Constitution and which, in most cases, specifically provided
for the communication of particulars. Those decisions are of
no assistance to the respondent as neither in article 22 nor
in  the Act is there any express provision that  particulars
of  the grounds of detention should be given to  the  person
detained.
    Our  attention was called to the decision of this  court
in  Ishwar  Das v. The State(1) as an  instance  where  this
court  considered the grounds of detention to be  vague  and
directed  the  release of the petitioner in that  case  from
detention under the Act.  As pointed out in the brief  judg-
ment in that case, no arguments were addressed on the  point
and  the case was disposed of on the view prima. facie  sup-
ported  by  the decisions already referred to that,  if  the
grounds  were  too general and vague to  enable  the  person
under detention to make a representation, he was entitled to
be  released.  No value can therefore be  attached  to  that
decision as a precedent.
    In the course of the debate it was repeatedly urged that
this  court should be jealous in upholding the  liberty   of
the  subject  which  the Constitution has  guaranteed  as  a
fundamental  right  and  must not adopt  a  construction  of
article  22  (5)  which would rob  the  safeguards  provided
therein of all their efficacy.  I am profoundly conscious of
the  sanctity  which the Constitution attaches  to  personal
liberty and other fundamental rights and of the duty of this
court to guard against inroads on them by the legislature or
the  executive.  But when, as has been stated, the Constitu-
tion  itself has authorised preventive detention and  denied
to the subject the right of trial before a court of law  and
of  consulting or being defended by a legal practitioner  of
his  choice, providing only certain  procedural  safeguards,
the  court could do no more than construe the words used  in
that  behalf  in their natural sense consistently  with  the
nature,  purpose and scheme of the measure thus  authorised,
to ascertain what
(1) Not reported.
199
powers are still left to the court in the matter.  It is  in
this  light that I have endeavoured to construe  clause  (5)
and,  for  the reasons indicated above, I have come  to  the
conclusion  that  it  is not the province of  the  court  to
examine  the sufficiency of the grounds for the  purpose  of
making  a  representation,  a matter left  entirely  to  the
discretion  of the executive authority. An argument in  sup-
port  of  the liberty of the subject has always  a  powerful
appeal  but  the  court should, in my  opinion,  resist  the
temptation of extending its jurisdiction beyond its  legiti-
mate bounds.
    DAS  J.--This appeal from a decision of the Bombay  High
Court raises a very important question as to the sufficiency
of  the grounds of an order of detention under the   Preven-
tive   Detention  Act, 1950.  The question depends, for  its
answer,  on a correct interpretation of clauses (5) and  (6)
of article 22 of our Constitution which have been reproduced
in  section 7 of the Act. A similar question has  also  been
raised in another appeal filed in this court by one  hundred
detenus  from the decision of a Bench of the  Calcutta  High
Court, being Case No. 24 of 1950 (Tarapada and Others v. The
State  of West Bengal)(1).  As the view I. have taken as  to
the  true meaning and effect of the relevant  provisions  of
the Constitution and of the Act has not commended itself  to
the  majority of my colleagues, I express it with a  certain
amount  of diffidence arising out of the high regard I  have
for their opinions.
Under  section 3 (1) (a) of the Act the  authority  con-
cerned  can make an order of detention only if he is  satis-
fied that, with a view to preventing a person from acting in
a manner prejudicial to one or more of the matters  referred
to  in  sub-clauses (i), (ii) and (iii) of  clause  (a),  an
order  should be made.  What materials will engender in  the
mind  of  the  authority the  requisite  satisfaction  under
section  3 (1) of the Act will depend  on the  training  and
temperament  and the habitual mental approach of the  person
who is the authority to (11) Reported infra at p. 212
    (1) Reported infra at p.212.
     26
200
make the detention order.  The authority concerned may be  a
person  who  will  not derive  the  requisite   satisfaction
except on very precise and full information amounting almost
to legal proof or he may be a person equally honest who will
be  so satisfied on meagre information which may  appear  to
others to be very vague or even nebulous.  If the  authority
is a person of the first mentioned type, then the  "grounds"
on  which  he will make the order will necessarily  be  more
precise  and  fuller in particulars than  the  "grounds"  on
which an order may be made by the authority who is a  person
of  the second mentioned type.  The "grounds" on  which  the
authority who is a person of the first mentioned type  makes
an order of detention create no difficulty, for such grounds
are  quite precise and ample, and, when communicated to  the
detenu,  will clearly enable him to appreciate  the  reasons
for  his detention and to make his representation.  We  are,
however,  concerned with the "grounds" on which an order  of
detention  may be made by the authority who is a  person  of
the  second  mentioned  type who may  derive  the  requisite
satisfaction from the conclusions which he may draw from the
available   information, which may not be precise  or  ample
but  on which, having regard to his source  of  information,
the  authority  may honestly feel safe to rely and  to  act.
This last mentioned type of grounds" will, in the  following
discussion, be referred to as "vague grounds".  The question
for  our decision is whether an order of detention  made  in
good faith on such "vague grounds" is valid when it is  made
and  whether  if valid when made,  becomes  invalid  because
these  very  grounds, when communicated to the  detenu,  are
found to be insufficient to enable him to make a representa-
tion.
    The first question urged by the learned counsel for  the
detenu is that an order of detention made upon grounds which
are too vague to enable the detenu to to make a  representa-
tion  against the order is bad ab initio.  The  argument  is
thus formulated.  Article 22 (5) requires two things,  name-
ly, first, that the authority
201
making  the  order of detention shall, as soon  as  may  be,
communicate  to the detenu the grounds on which  the,  order
has  been  made  and, secondly, that  the  authority'  shall
afford him the earliest opportunity to make a representation
against the order. The two requirements'are correlated.  The
object of the communication of the grounds, according to the
argument,  is to enable the detenu to make a  representation
against  the order of detention and the combined  effect  of
the  two constitutional requirements is that the grounds  on
which the order is made must be such as will, when  communi-
cated to the detenu, enable him to make a representation. If
the  grounds  communicated  are too vague  being  devoid  of
particulars, then no representation can be made on the basis
of them and if no representation can be made on the basis of
these  grounds,  no order of detention could  properly  have
been  made on those grounds, for it is the grounds on  which
the order had been made that have to be communicated to  the
detenu  so as to enable him to make a  representation.   The
argument, shortly put, is that the implied requirement  that
the grounds must be such as will enable the detenu to make a
representation  also indicates the quality or  attribute  of
the  grounds  on which the order of detention may  be  made.
Whether  the grounds satisfy the requirements of article  22
(5)  is not left to the subjective opinion of the  authority
which makes the order of detention but an objective test  is
indicated,  namely,  that the grounds must be such  as  will
enable  the  detenu  to make a  representation  which  quite
clearly  makes the matter justiciable.  If the  court  finds
that no representation may be made on account of the  vague-
ness of the grounds. the court must also hold that the order
made  on such vague grounds cannot be sustained.   The  next
step  in the argument is that the provisions of the  Preven-
tive  Detention Act, 1950 (Act IV of 1950), which was passed
after the Constitution came into effect must be read in  the
light  of article 22 (5) as construed above.  So  read,  the
satisfaction  of the authority referred to in section  a  of
the  Act  cannot  be  the  subjective  satisfaction
202
  of   the   authority,  for  the   satisfaction   must   be
founded  on grounds which, when communicated later on,  will
enable the detenu to make a representation which  postulates
an  objective test. This involves that section 3 (1) (a)  of
the  Act should be read as if the words "on  grounds  which,
when  communicated to him, will enable him to make a  repre-
sentation  such  as is mentioned in section 7 of  this  Act"
occurred  after the words "if satisfied with respect to  any
person"  and before the words "that with a view".   If  such
interpolation  of  words  be not  permissible  according  to
accepted  canons of construction, then it must be held  that
in  so far as section 3 of the Act makes an order of  deten-
tion dependent on the subjective satisfaction of the author-
ity, the section is unconstitutional, being repugnant to the
provisions  of article 22 (5) and the necessary   intendment
thereof.   The argument  so formulated is attractive but  on
closer  scrutiny  will be found to be unsound.   Before  the
Constitution came into force there were laws for the mainte-
nance of public security in almost all the provinces  and in
those  laws there were provisions similar to the  provisions
of section 3 of the Preventive Detention Act, 1950.  It  was
held  in  many cases that in the absence of bad  faith,  and
provided  the  grounds on which the  authority  founded  its
satisfaction  had a reasonable relation or relevancy to  the
object  which the legislation in question had in  view,  the
satisfaction  of  the authority was  purely  subjective  and
could  not be questioned in any court of law.  The  decision
of  the  Federal  Court in Machindar Shivaji  Mahar  v.  The
King(1) is one of such decisions.  Vagueness of the  grounds
on which satisfaction of the authority is founded cannot  be
treated  as  on the same footing as the irrelevancy  of  the
grounds, unless the vagueness be such as may, by itself,  be
cogent  evidence in proof of bad faith.  If the grounds  are
relevant  to the objects of the legislation and if there  is
no  proof of bad faith, then mere vagueness of  the  grounds
cannot vitiate the satisfaction founded on them.  The satis-
faction being subjective, the court
   (1) [1949-50] F.C.R. 827 at p.831,
203
cannot arrogate to itself the responsibility of judging  the
sufficiency or otherwise of the grounds.  It is true that at
the time those decisions were given the Constitution had not
come  into force and there were no fundamental  rights,  but
these well established principles were recognised and adopt-
ed  by all members of this court in Gopalan's case(1)  which
came  up for consideration after the Constitution  had  come
into force. In that case it was held unanimously that  under
section 3 of the Preventive Detention Act, 1950, the  satis-
faction  of  the authority was purely subjective  and  could
not, in    the absence of proof of bad faith, be  questioned
at     all and that section 3 was not  unconstitutional.  It
is true that the arguments now advanced were not advanced in
exactly the same form on that occasion, but that fact  makes
no  difference, for the arguments have no force as they  are
founded on the assumption that the grounds on which an order
may  be  made must be such as will,  when  communicated,  be
sufficiently full and precise so as to enable the detenu  to
make  a representation.  I find no warrant for such  an  as-
sumption.   Indeed, the fact that this court has  held  that
section  3  of the Act which makes the satisfaction  of  the
authority a purely subjective matter is not unconstitutional
clearly  destroys the cogency of the argument formulated  as
hereinbefore  stated.  The decision in Gopalan's case(1)  as
to the validity of section 3 of the Act makes it  impossible
to accept this argument.
It is next urged that even if the initial order was  not
invalid when made because satisfaction was a purely  subjec-
tive  matter for the authority alone and the   court  cannot
consider  or pronounce upon  the sufficiency of the  grounds
on  which  the  satisfaction was  based,  nevertheless,  the
continuance  of the detention becomes unlawful if  the  same
grounds  when communicated, be found to be vague and  devoid
of  particulars so as to render the making of a  representa-
tion by the detenu somewhat difficult. The argument is  that
although the vagueness of the grounds is not
    (1) [1950] S. C. R. 88.
204
justiciable at the initial stage when the order is made  and
so  the  order  cannot  be said to  be  invalid  ab  initio,
the same vagueness of the ground is nevertheless      justi-
ciable   at  the  later  stage  when  they   are.   communi-
cated,  so  that  if  vagueness  renders  the  making  of  a
representation difficult the continuance of the detention at
once  becomes illegal. Under article 21 no person    can  be
deprived   of   his   life  or   personal   liberty   except
according   to  procedure  established by  law.   As     ex-
plained  in  Gopalan's  case(1)  procedure  established   by
law  means  procedure  enacted  by  the  Legislature,  i.e.,
State-made  procedural  law  and not  any  rule  of  natural
justice.   It  was  pointed  out  that  the  implication  of
that article was that a person could be deprived of      his
life   or   personal  liberty  provided   such   deprivation
was   brought   about   in    accordance   with    procedure
enacted  by the appropriate Legislature.  Having so     pro-
vided  in  article  21,  the  framers  of  our  Constitution
proceeded  to  lay  down  certain  procedural   requirements
which,  as  a matter of constitutional  necessity,  must  be
adopted   and  included  in  any  procedure  that   may   be
enacted by the Legislature and in accordance with      which
a person may be deprived of his life or personal    liberty.
Those  requirements are set forth in article 22      of  the
Constitution.   A  perusal of the several  clauses  of  that
article   will   show  that  the   constitutional   require-
ments  of  procedure  which  must  be  incorporated  in  any
law  for  preventive  detention  relate  to  a  stage  after
the order of detention is made under section 3       of  the
Preventive    Detention   Act,   1950.    The    order    of
detention   being   thus  in   accordance   with   procedure
enacted by law which is not inconsistent with, any of    the
provisions   of  Part  III  of  the  Constitution   applica-
ble  to  that  stage,  the  order  of  detention  cannot  be
questioned  unless  there  is proof  of  bad  faith,  either
direct  or  indirect.   We  have,  therefore,  to   consider
whether   the  detention  validly  brought   about   becomes
unlawful   by  reason  of  subsequent  non-compliance   with
the  procedural requirements laid down in clause  (5)     of
article 22, for if there is such non-compliance, the
(1) [1950] S.C.R. 88.
205
detenu  from that moment must be held to be deprived of  his
liberty  otherwise than in accordance with procedure  estab-
lished  by law and will, therefore, be  entitled to  be  re-
leased.
    I  am  prepared to concede that there is  some  correla-
tion  between the two parts of article 22 (5),  namely,  the
communication  of  the grounds on which the order  has  been
made  and the making of the representation by  the  detained
person. The Constitution insists on the communication of the
grounds on which the detention order has been made for  some
purpose.  That purpose obviously is to apprise the detenu of
the reasons for the order of his detention.  The  communica-
tion  of the grounds will necessarily enable him, first,  to
see  whether the grounds are at all relevant to  the  object
sought to be secured by the Act. If they are not, then  they
were no grounds at all and no satisfaction could be  founded
on  them.   The very irrelevancy of the grounds  will  be  a
cogent proof of bad faith on the part of the authority so as
to  make the order itself invalid.  In the next  place,  the
disclosure  of  the grounds will tell the detenu  in   which
class his suspected activities have been placed and  whether
he is entitled to the benefit of having his case scrutinised
by  the  Advisory Board. Finally, the communication  of  the
grounds  on  which  the order has been made  will  tell  him
generally  the reasons for his detention, and  will,  there-
fore, be helpful to the detained person in making his repre-
sentation  which is also provided for in the tatter part  of
clause (5).  The fact that there is correlation between  the
two  parts  of clause (5) does not, however,  carry  us  any
further.  There is no warrant for assuming that the  grounds
to be communicated to the detenu are to be a formal  indict-
ment  or a formal pleading setting forth a charge or a  case
with  meticulous particularity nor is there any warrant  for
the  assumption  that the representation has to  be  in  the
nature of a defence or written statement specifically  deal-
ing with the charge or the case. Indeed, the idea of a trial
is  foreign  to the law of preventive detention.   The  very
fact  that the provisions of clauses (1) and (2) of  article
22
206
do  not apply to preventive detention clearly  excludes  the
idea of a trial before a tribunal.  As I have said, the
 grounds  will generally indicate the conclusions  drawn  by
the  appropriate  authority with respect  to  the  suspected
activities of any particular person and those grounds,  when
communicated,  will enable the detenu to make a  representa-
tion,  for  he can easily refer to and set  forth  his  real
activities  and represent that all his activities are  inno-
cent and cannot possibly give rise to the suspicion indicat-
ed in the grounds.  To say that clause (5) itself  indicates
that  the grounds must be such as will enable the detenu  to
make  a representation is to read into clause (5)  something
which is not there. It is a re-statement of the first  argu-
ment  in a new form and is fallacious. In the  first  place,
clause (5) does not in terms say that the authorities  shall
communicate such grounds as will enable the detenu to make a
representation.  In the second place, the decision in  Gopa-
lan's  case(1) militates against this argument, for  if  the
sufficiency of the grounds is not justiciable at the initial
stage  when the order is made, as held in that case,  it  is
wholly illogical to say that the intention of the  Constitu-
tion  is to make the sufficiency of the same grounds  justi-
ciable  as soon as they are communicated to the  detenu.  As
already  stated, an order made upon satisfaction founded  on
vague grounds is quite valid, if the vagueness is not  proof
of bad faith. Under clause (5) the authority is to  communi-
cate  the  grounds on which the order has been  made.   This
will  let the detenu know what operated on the mind  of  the