dedol-hf/india-case-legal-rag huggingface dataset:
played an important part in the shaping of the Constitution.
As an aid to discover the meaning of the words in a  Consti-
tution, these debates are of doubtful value. ''Resort can be
had  to  them"' says Willoughby,  ''with great  caution  and
only when latent ambiguities are to be solved. The  proceed-
ings  may be of some value when they clearly point  out  the
purpose  of the provision. But when the question is  of  ab-
stract  meaning,  it will be difficult to derive  from  this
source much material assistance in interpretation"(1).
   The learned Attorney-General concedes that these  debates
are not admissible to explain the meaning of the words  used
and  he wanted to use them only for the purpose  of  showing
that the Constituent Assembly when they finally adopted  the
recommendation  of the Drafting Committee, were fully  aware
of the implications of the differences between the old  form
of  expression and the new.  In my opinion, in  interpreting
the  Constitution, it will be better if such extrinsic  evi-
dence is left out of account. In matters like this,  differ-
ent  members act upon different impulses and from  different
motives and it is quite possible that some members  accepted
certain words in a particular sense, while others took  them
in a different light.
   The  report of the Drafting Committee,  however,has  been
relied  upon by both parties and there are decided  authori-
ties  in  which  a higher value has been  attached  to  such
reports  than  the debates on the floor of  the  House.   In
Caminetti  v. United States (2), it is said that reports  to
Congress  accompanying the introduction of proposed law  may
aid the Courts in reaching the true meaning of the  legisla-
tion  in  case  of doubtful interpretation.  The  report  is
extremely  short.  It simply says that the  reason  for  the
suggested change is to make the thing more specific.
   I  have  no doubt in my mind that if  the  "due  process"
clause  which  appeared in the original  draft  was  finally
retained  by  the Constituent Assembly, it could  be  safely
presumed that the framers of the Indian
(1)  Vide  Willoughby  on the  Constitution  of  the  United
States, p. 64.
(2) 242 U.S. 470.
275
Constitution  wanted that expression to bear the same  sense
as it does in America.  But when that form was abandoned and
another was deliberately substituted in its place, it is not
possible  to  say  that in spite of the  difference  in  the
language and expression, they should mean the same thing and
convey  the same idea.  Mr. Nambiar's contention is that  in
view of the somewhat uncertain and fluidic state of  law  as
prevails in America on the subject, the  Drafting  Committee
recommended an  alteration  for  the  purpose  of making the
language  more  specific and he would have us hold  that  it
was made specific in this way, namely, that instead of being
extended  over the whole sphere of law, substantive as  well
as adjective,  it  was  limited  to  procedural   law  mere-
ly.   That is the reason, he says, why instead of  the  word
"process" the expression  "procedure"  was adopted, but  the
word  "law"  means  the same thing as it does  in  the  "due
process" clause in America and refers not to any  State-made
law but to the fundamental principles which are inherent  in
the legal system and are based upon the immutable  doctrines
of natural justice.
    Attractive  though  this argument might at  first  sight
appear,  I do not think that it would be possible to  accept
it as sound.  In the first place, it is quite clear that the
framers of the Indian Constitution did not desire to  intro-
duce into our system the elements of uncertainty,  vagueness
and  changeability that have grown round the  "due  process"
doctrine  in  America.  They wanted to  make  the  provision
clear,  definite  and  precise and  deliberately  chose  the
words" procedure established by law," as in their opinion no
doubts  would  ordinarily arise about the  meaning  of  this
expression.  The  indefiniteness in the application  of  the
"due process" doctrine in America has nothing to do with the
distinction  between  substantive and procedural  law.   The
uncertainty and elasticity are in the doctrine itself  which
is a sort of hidden mine, the contents of which nobody knows
and  is merely revealed from time to time to  the.  judicial
conscience of the Judges.  This theory, the Indian Constitu-
tion deliberately discarded
276
and  that  is why they substituted a different form  in  its
place  which, according to them, was more specific.  In  the
second place, it appears to me that when the same words  are
not  used,  it will be against the ordinary canons  of  con-
struction  to interpret a provision in our  Constitution  in
accordance  with  the  interpretation put  upon  a  somewhat
analogous provision in the Constitution of another  country,
where  not  only the language is different, but  the  entire
political conditions and constitutional set-up are  dissimi-
lar.  In the Supreme Court of America, stress has been  laid
uniformly upon the word "due" which occurs before and quali-
fies  the expression "process of  law."    "Due"   means   "
what is just and proper" according to the circumstances of a
particular case. It is this word which introduces the varia-
ble element in the application of the doctrine; for what  is
reasonable  in  one set of circumstances may not  be  so  in
another and a different set.  In the Indian Constitution the
word  "due"  has  been  deliberately omitted and this  shows
clearly that the Constitution-makers of India had no  inten-
tion of introducing the American doctrine.  The word "estab-
lished"  ordinarily means "fixed or laid down" and if  "law"
means, as Mr. Nambiar contends, not any particular piece  of
law but the indefinite and indefinable principles of natural
justice which underlie positive systems of law, it would not
at  all be appropriate to use the expression  "established,"
for natural law or natural justice cannot establish anything
like a definite procedure.
    It does not appear that in any part of the  Constitution
the  word "law" has been used in the sense of "general  law"
connoting  what  has  been described as  the  principles  of
natural  justice outside the realm of positive law.  On  the
other  hand, the provision of' article 31 of  the  Constitu-
tion,  which appears in the. chapter on Fundamental  Rights,
makes  it clear that the word "law" is equivalent to  State-
made  law and to deprive a person of his property,  the  au-
thority  or sanction of such law is necessary.  As has  been
said  already, the provision of article 21  of.  the  Indian
Constitution reproduces, save in one particular, the-
277
language  of article 31 of the Japanese Constitution and  it
is  quite clear from the scheme and provisions of the  Japa-
nese  Constitution that in speaking of law it refers to  law
passed  or  recognised as such by the State.  In  the  Irish
Constitution  also,  there is provision  in  almost  similar
language  which  conveys the same idea. Article 40  (4)  (1)
provides that "no citizen shall be deprived of his  personal
liberty save in accordance with law," and by law is certain-
ly meant the law of the State.
    Possibly the strongest argument in support of Mr. Nambi-
ar's  contention is that if law is taken to mean  State-made
law, then article 21 would not be a restriction on  legisla-
tion  at all. No question of passing any law  abridging  the
right  conferred  by this article could possibly  arise  and
article  13 (2) of the Constitution would have no  operation
so  far as this provision is concerned.  To quote the  words
of  an  American  Judge it would sound very  much  like  the
Constitution  speaking to the legislature  that  the  latter
could  not  infringe the right created   by  these  articles
unless it chose to do so (1).
    Apparently  this is a plausible argument but it must  be
admitted  that we are not concerned with the policy  of  the
Constitution.   The  fundamental rights  not  merely  impose
limitations  upon the legislature, but they serve as  checks
on  the  exercise of executive powers as well,  and  in  the
matter of depriving a man of his personal liberty, checks on
the  high-handedness of the executive in the shape  of  pre-
venting  them from taking any step, which is not in  accord-
ance  with law, could certainly rank as fundamental  rights.
In the Constitutions of various other countries, the  provi-
sions relating to protection of personal liberty are couched
very much in the same language as in article 21.  It is  all
a  question of policy as to whether the legislature  or  the
judiciary  would have the final say in such matters and  the
Constitution-makers of  India deliberately decided to  place
these powers in the hands of the legislature.  Article 31 of
the  Japanese  Constitution, upon which article  21  of  our
Constitution is modelled, also
(1) Vide per Bronson 5. in Taylor v. Porte 4 Hill 1<0.
278
proceeds  upon the same principle.  The  Japanese  Constitu-
tion, it is to be noted, guarantees at the same. time  other
rights  in regard to arrest, detention and access  to  Court
which  might  serve as checks on  legislative  authority  as
well.  Thus article 32 provides:
"No  person shall be denied the right of access  to  the
Courts."
Article 34 lays down:
    "No  person shall be arrested or detained without  being
at  once informed of the charges against him or without  the
immediate  privilege  of counsel, nor shall he  be  detained
without adequate cause; and upon demand of any person,  such
cause  must  be  immediately  shown in  open  Court  in  his
presence and in the. presence of his counsel."
    It  was  probably on the analogy of article  34  of  the
Japanese Constitution that the first two clauses of  article
22  of the Indian Constitution were framed. Article  22  was
not in the original Draft Constitution at all; and after the
"due process" clause was discarded by the Constituent Assem-
bly  and  the present form was substituted in its  place  in
article 21, article 22 was introduced with a view to provide
for  some sort of' check in matters of arrest and  detention
and  the protection it affords places limitations  upon  the
authority  of  the legislature as  well.  These  protections
indeed have been denied to cases of preventive detention but
that again is a question of policy which does not concern us
as a Court. My conclusion, therefore, is that in article  21
the word "law" has been used in the sense of State-made  law
and not as an equivalent of law in the abstract  or  general
sense   embodying  the principles of natural  justice.   The
article presupposes that the law is a valid and binding  law
under  the provisions. of the Constitution having regard  to
the competency of the legislature and the subject it relates
to and does not infringe any of the fundamental rights which
the Constitution provides for.
In  the view that I have taken, the question  raised  by
Mr. Nambiar that the Preventive Detention Act is invalid, by
reason of the fact that the procedure it lays
279
down is not in conformity with the rules of natural justice,
does not fall for consideration.  It is enough, in my  opin-
ion,  if  the law is a valid law which  the  legislature  is
competent  to pass and which does not transgress any of  the
fundamental rights declared in Part III of the Constitution.
It  is  also unnecessary to enter into a discussion  on  the
question raised by the learned Attorney-General as to wheth-
er article 22 by itself is a self-contained Code with regard
to  the law of Preventive Detention and whether or  not  the
procedure it lays down is exhaustive.  Even if the procedure
is not exhaustive, it is not permissible to supplement it by
application  of the rules of natural justice.  On the  third
point  raised by Mr. Nambiar, the only question,  therefore,
which  requires consideration is whether section 12  of  the
Preventive Detention Act is ultra vires of the  Constitution
by reason of its being not in conformity with the  provision
of article 22 (7)(a). Article 22 (7) (a) of the Constitution
empowers the Parliament to prescribe 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).  Section 12  of
the Preventive Detention Act which purports to be an  enact-
ment in pursuance of article 22 (7) (a) of the  Constitution
provides as follows:
    "(1) Any person detained in any of the following classes
of cases or under any of the following circumstances may  be
detained without obtaining the opinion of an advisory  board
for  a  period longer than three months, but  not  exceeding
one year from the date of his detention, namely, where  such
person has been detained with a view to preventing him  from
acting in any manner prejudicial to
    (a)  the defence of India, relations of India with  for-
eign powers or the security of India; or
        (b) the security of a State or the maintenance
of public order."
It will be noticed that there are altogether six
36
280
heads or subjects in the two Items in the legislative lists,
namely,  Item  No. 9 of List I and Item No. 3  of  List  III
which deal with preventive detention.  Item No. 9 of List  I
mentions reasons connected with defence, foreign affairs and
security  of India, while Item No. 3 of List III  speaks  of
reasons connected with security of a State, the  maintenance
of public order and the maintenance of supplies and services
essential to the community.  With the exception of the  last
head; all the remaining five have been listed in section  12
of the preventive Detention Act and they have been mentioned
both  as circumstances and classes of cases in which  deten-
tion for more than three months would be permissible without
the opinion of any advisory board. Mr. Nambiar's argument is
that  the  mentioning_ of five out of  the  six  legislative
heads  in  section  12 does not amount  to  prescribing  the
circumstances under which, or the classes of cases in which,
a  person  could be detained for more than three  months  as
contemplated  by article 22 (7) (a).  It is  also  contended
that in view of the fact that the two items  "circumstances"
and  "classes" are separated by the conjunction "and,"  what
the   Constitution really contemplated was that  both  these
items  should be specified and a statement or  specification
of any one of them would not be a proper compliance with the
provisions  of the clause.  It is further pointed  out  that
the  mentioning  of the same matters as  "circumstances"  or
"classes" is not warranted by article 22 (7) of the  Consti-
tution and is altogether illogical and unsound.
     I must say that section 12 has been drafted in a rather
clumsy  manner and certainly it could have been framed in  a
better  and  more proper way.  Under article  22(7)(a),  the
Parliament  may  specify the circumstances under which,  and
the classes of cases in which, the necessity of placing  the
cases  of detention for examination  by the  advisory  board
could  be  dispensed with.   By "classes of cases"  we  mean
certain  determinable groups, the individuals  comprised  in
each group being related to one another in a particular  way
which  constitutes  the determining factor of   that  group.
"Circumstances"  on the other hand
281
connote  situations or conditions which are external to  the
persons concerned.  Preventive detention can be provided for
by  law  for reasons connected with six  different  ,matters
specified  in the relevant items in the  legislative  lists,
and  whatever  the reasons might be, there  is  a  provision
contained in article 22 (4) (a) which lays down that  deten-
tion  for  more  than three months could  not  be  permitted
except with the sanction of the advisory board.  An alterna-
tive however has been provided for by clause (b) and Parlia-
ment  has been given the option to take away the  protection
given  by clause (a) and specify the circumstances  and  the
cases when this rule will not apply.  I am extremely  doubt-
ful  whether the classification of cases made by  Parliament
in section 12 of the Act really fulfils the object which the
Constitution  had in view.  The basis of classification  has
been the apprehended acts of the persons detained  described
with  reference  to the general heads mentioned in the items
in the legislative lists as said above.  Five out of the six
heads  have been taken out and labelled as classes of  cases
to  which  the protection of clause (4) (a) of  the  article
would not be available.  It is against common sense that all
forms  of  activities connected with these  five  items  are
equally dangerous and merit the same drastic treatment.  The
descriptions  are  very  general and there may  be  acts  of
various  degrees of intensity and danger under each  one  of
these heads.
    Although I do not think that section 12 has been  framed
with due regard to the object which the Constitution had  in
view,  I  am unable to say that the section  is  invalid  as
being  ultra  vires the Constitution. The  Constitution  has
given  unfettered  powers  to Parliament in  the  matter  of
making the classifications and it is open to the  Parliament
to adopt any method or principle as it likes.   If it  chose
the  principle implied in the enumeration of subjects  under
the  relevant  legislative  heads, it cannot  be  said  that
Parliament has exceeded its powers.
    I  am also unable to hold that both  "circumstances"  as
well as "classes" have to be prescribed in order to
282
comply with the requirement of sub-clause (a) of article  22
(7).   The sub-clause (a) of the article lays down a  purely
enabling  provision  and Parliament, if it so  chooses,  may
pass any legislation in terms of the same. Where an optional
power  is  conferred  on certain authority  to  perform  two
separate acts, ordinarily it would not be obligatory upon it
to  perform both; it may do either if it so likes. Here  the
classes  have been specified and the classes apparently  are
composed  of  persons who are detained for  the  purpose  of
preventing them from committing certain apprehended acts.  I
am  extremely doubtful whether the classes themselves  could
be described as "circumstances" as they purport to have been
done in the section.  "Circumstances" would ordinarily refer
to conditions like war, rebellion, communal disturbances and
things  like  that, under which extra  precaution  might  be
:necessary and the detention of suspected persons beyond the
period of three months without the sanction of the  advisory
board might be justified.  It is said that the likelihood of
these  persons  committing  the particular  acts  which  are
specified  might constitute "circumstances." In my  opinion,
that is not a plain and sensible interpretation. But whatev-
er that may be, as I am of opinion that it is not obligatory
on  Parliament to prescribe both the circumstances  and  the
classes  of cases, I am unable to hold that  section  12  is
ultra vires the Constitution because the   circumstances are
not mentioned.  As I have said at  the beginning, the  draft
is  rather clumsy and I do not know why Parliament used  the
word "or" when in the Constitution itself the word "and" has
been used.
    In  the fourth and last point raised by Mr. Nambiar  the
principal  question  for consideration is  the  validity  of
section  14  of the Preventive  Detention  Act.   Subsection
(1)of  section  14  prohibits any Court  from  allowing  any
statement  to be made or any evidence to be given before  it
of  the substance of any communication made under section  7
of  the  grounds on which a detention order  has  been  made
against any person or any representation made by him against
such order.  It further provides that no Court shall be
283
entitled to require any public officer to produce before  it
or  to disclose the substance of any such  communication  or
representation made or the proceedings of an advisory  board
or  that  part of the report of an advisory board  which  is
confidential.  Sub-section (2) further provides that:
      "It  shall be an offence punishable with  imprisonment
for  a term which may extend to one year, or with  fine,  or
with both, for any person to disclose or publish without the
previous  authorisation  of the Central  Government  or  the
State  Government,  as  the' case may be,  any  contents  or
matter  purporting to be contents of any such  communication
or representation as is referred to in sub-section (1):
Provided that nothing in this sub-section shall  apply
to a disclosure made to his legal adviser by a person who is
the subject of a detention order."
     The provisions of this section are obviously of a  most
drastic  character.  It imposes a ban on the Court and  pre-
vents  it  from  allowing any statement to be  made  or  any
evidence produced before it of the substance of any communi-
cation made to the detenu apprising him of the grounds  upon
which  the  detention  order was made.  The  Court  is  also
incompetent to look into the proceedings before the advisory
board  or  the report of the latter which  is  confidential.
Further  the  disclosure of such materials has been  made  a
criminal  offence  punishable with imprisonment for  a  term
which  may extend to one year.  Mr. Nambiar's contention  is
that  these restrictions render utterly nugatory the  provi-
sions of article 32 of the Constitution which guarantees  to
every  person  the right to move this Court  by  appropriate
proceedings  for the enforcement of the rights conferred  by
Part  III of the Constitution.  It is not disputed that  the
petitioner has the right of moving this Court for a writ  of
habeas corpus, and unless the Court is in a position to look
into and examine the grounds upon which  the detention order
has been made, it is impossible for it to come to any  deci-
sion  on the point and pass a proper judgment.   Though  the
right to  move this
284
Court is not formally taken away, the entire proceedings are
rendered  ineffective and altogether illusory. On behalf  of
the respondent, it is pointed out that article 32 guarantees
only  the right to constitutional remedy for enforcement  of
the   rights  which are declared by the  Constitution.    If
there  are no rights under the Constitution,  guaranteed  to
a person who is detained under any law of preventive  deten-
tion,  no  question of  enforcing  such  rights  by  an  ap-
proach  to  this Court at all arises.  I do not  think  that
this argument proceeds on a  sound basis; and in my opinion,
section  14  does take away and materially curtails some  of
the fundamental rights which are guaranteed by the Constitu-
tion  itself.  Article 22, clause (5), of  the  Constitution
lays  down  as  a fundamental right that when  a  person  is
detained 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  representa-
tion  against  the order.  Under clause (6),  the  authority
need  not disclose such facts as it considers to be  against
public interest to disclose.  But so far as the grounds  are
concerned,  the disclosure is not prohibited under any  cir-
cumstance.  It is also incumbent upon the detaining authori-
ty  to afford a detenu the earliest opportunity of making  a
representation against the detention order. It has been held
in  several cases, and in my opinion quite rightly, that  if
the  grounds  supplied to a detained person are  of  such  a
vague  and indefinite character that no proper and  adequate
representation  could  be made in reply to  the  same,  that
itself  would be an infraction of the right which  has  been