TMI Blog1974 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... JAGANMOHAN REDDY, P.K. GOSWAMI RANJIT SINGH SARKARIA, JJ. For the Petitioner : R.K. Jain For the Respondents : D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee JUDGMENT This is a petition for a writ of habeas corpus under article 32 of the Constitution challenging the validity of the detention of the petitioner under an order of detention dated 3rd November, 1973 passed by the District Magistrate, Malda under sub-section (1) read with subsection (2) of section 3 of the Maintenance of Internal Security Act, 1971. The questions raised in this petition are of importance is they effect the fundamental right of personal liberty which is one of the most cherished fundamental rights guaranteed by the Constitution. It is necessary to state the facts giving rise to this petition in so far as they are material to a proper understanding of the important issues involved in this petition. The District Magistrate, Malda passed an order of detention dated 3rd November, 1973 under sub-section (1) read with sub-section (2) of section 3 of the Act directing that the petitioner be detained on the ground that it was necessary so to do with a view to preventing him from actin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our associates Abdul Hamid son of Nur Md. of Uttar Laxmipur Dafadortola, Mehini Ranjan Das Hittan s/o L. Arjeen Mondal of Uttar Laxmipur, Nafar Bhakattolal and two others removed the transformer from the electrical part of village Natichapa Nayagram Deep tube well for the purpose of committing theft of copper wire. When the same was brought down to the ground, O C. Kaliachak P. S. with other staff who were on ambush patrol caught held of you and two of your associates the spot. Thus you acted in a manner prejudicial to the maintenance of supplies and services-essential to the community. The petitioner did not make his representation against the order of detention until the beginning of February 1974, but in the mean time, in obedience of section 10 of the Act, the case of the petitioner was placed by the State Government before the Advisory Board on 22nd January, 1974 and the ground of detention were also forwarded to the Advisory Board in order to enable it to give its opinion. The representation of the petitioner against the order of detention was in the meanwhile received by the State Government on 5th February, 1974. The State Government considered the representation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District Magistrate when he made the order of detention and though the District Magistrate stated in his affidavit in reply that beyond the three incidents mentioned in the grounds of detention he did not take any other material in the history-sheet into account in passing the order of detention, it was impossible to say that he was not influenced by such other material and since no opportunity was given to the petitioner to make an affective representation against such other material, the order of detention was in contravention of Art. 22(5) of the Constitution and section 8, subsection (1) of the Act and was on that account invalid. (d) The history-sheet of the petitioner which contained other relevant material in regard to the petitioner in addition to the three incidents referred to in the grounds of detention was before the State Government when it approved the order of detention and in the absence of any statement to the contrary on behalf of the State Government in the affidavit in reply, it must be inferred that the State Government took such other material into account in approving the order of detention. This was contrary to the constitutional mandate in Art. 22(5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good and social security. But, what is the content of these safeguards ? What does the word grounds mean ? Does it mean only the final conclusion reached by the detaining authority on which alone the order of detention can be made, or does it include the basic facts and materials from which the conclusions justifying the order of detention are drawn by the detaining authority ? What is the inter-relation between the requirements of the first and the second safeguards ? Is the efficacy of the second safeguard violated by nonobservance of the requirement of the first safeguard ? If all the grounds which weighed with the detaining authority are not communicated to the detenu, does it constitute merely a breach of the first safeguard or does it also involve the violation of the second ? The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu as soon as may be after the detention. Obviously the reason is twofold. In the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . . . the petitioner has (1) W. P. No. 270 of 1974. decided on 12th September, 1974. (2) [1953] S.C.R. 708. the right under article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention ,sufficient to enable him to make a representation which on being considered may give relief to him . We are of opinion that this constitutional requirements must be satisfied with respect to each of the grounds communicated to the person detained. Venkatarama Ayyar, J., also pointed out in Shamrao Vishnu Parulekar v. The District Magistrate, Thana(.1) that construing the words grounds on which the order has been made in their natural and ordinary sense, they would include any information or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word ground : Base, foundation, motive, valid reason . On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefor . (emphasis supplied). It is, therefore clear that nothing, less than all the basic facts and materials which influe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l remain in force for more than twelve days from the making thereof unless in the meantime it has been approved by the State Government. Section 4, 5, 6 and 7 are not material for the purpose of the present petition and we need not refer to them. Section 8 is important and it may be reproduced as follows : (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. Section 9 provides for the constitution of an Advisory Board and section 10 lays on obligation on the appropriate Government, in every case where an order of detention has been made, to place before the Advisory Board, within thirty days from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in State of Madras v. V. G. Row( A.I.R. 1952 S.C. 597) that preventive detention is largely precautionary and based on suspicion and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday,(2) namely, that the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based . This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be, likely to act in a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority: if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji (A.I.R. 1943 F.C. 92.) is a case in point. Then there may be a case where the power is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider. There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of lord Halsbury in Sharp v. Wakefield [1891] A.C. 173, at 179 ..... when it is said that something is to be done within the discretion of the authorities-that something is to be done according to the rules of reason and justice, not according to private, opinion-according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular. So far as this ground is concerned , the courts in the United States have gone much further than courts in England or in this country. The United States courts are prepared to review administrative findings which are not supported by substantial evidence, that is by such relevant findings as a reasonable man may accept adequate to support a conclusion . But in England and in India, the courts stop short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te it may be, and courts have never failed to recognise it. This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. Law has reached its finest moments , said Justice Douglas, when it has freed man from the unlimited discretion of some ruler, some official, some bureaucrat-Absolute discretion is a ruthless master. It is more destructive of freedom than any of man s other inventions . United States v. Wunderlick.(342 U. S. 98) And this is much more so in a case Where personal liberty is involved. That is why the Courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds. The next question which then arises for consideration is whether section 3 of the Act in so far as it empowers the detaining authority to exercise, the power of detention on the basis of its subjective satisfaction imposes unreasonable restrictions on the fundamental rights of the petitioner under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 19 and article 31(2) was not a protection against the infringement of that guaranteed right, proceeded on the assumption that the Act which is for preventive detention has to be tested in regard to its reasonableness with reference to article 19. That decision accepted and applied the ratio in Shambhu Nath Sarkar s case (supra) as well as R. C. Cooper s case (supra) to both of which Ray, C.J., was a party. This question, thus, stands concluded and a final seal is put on this controversy and in view of these decisions, it is not open to any one now to contend that a law of preventive detention, which falls within article 22, does not have to meet the requirement of article 14 or article 19. Indeed, in Haradhan Saha s case (supra), this Court proceeded to consider the challenge of article 19 to the validity of the Act and held that the Act did not violate any of the constitutional guarantees embodied in article 19 and was valid. Since this Court negatived the challenge to the validity of the Act on the ground of infraction of article 19 and upheld it as a valid piece of legislation in Haradhan Saha s case (supra), the petitioner cannot be permitted to reagitate the same questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oach. Where the liberty of a subject is involved and he has been detained without trial, and a law made pursuant to Art. 22 which provides certain safeguards. it is the duty of this Court as the custodian and sentinel on the ever vigilant guard of the freedom of an individual to scrutinize with due care and anxiety that this precious right which he has under the Constitution is not in any way taken away capriciously, arbitrarily or without any legal justification. This Court has held that where grounds are furnished to the detenu those grounds must not be vague and must be such as to enable him to make a proper and effective representation against his detention. This Court has further held that where there are several grounds, even if one ground is vague, then it is difficult to say whether the ground which is vague and in respect of which the detenu could not make an effective representation did not influence the mind of the detaining authority in arriving at his subjective satisfaction that the detenu would in future be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community. If the detention order is held invalid on this accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision making process. Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable-probability be likely to influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiorari, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention. But in the present case we do not find that there is any such infirmity vitiating the order of detention against the petitioner. The material in the history-sheet of the petitioner which was not disclosed to him referred to two circumstances. One was that the petitioner had picked up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 3, sub-section (2) of the Act. Therefore, a fortiorari all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so. that the State Government can, as a, supervisory authority, decide whether the power of detention has been properly or improperly exercised by the District Magistrate. But in, addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under section 3, sub-section (3) such other particulars as in his opinion have a bearing on the, matter . Obviously, these other particulars would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If these are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at-his subjective satisfaction, they would be part of the grounds of detention and not other particulars . It is not possible to categorise pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited the following facts and particulars : This does not help him in maintaining the family and as such he became associated with the criminals viz. Kanani Mondal of Krishnapur, Kuren Mondel of Krishnapur. He picked up the habit of committing theft of copper wire and as such he mixed up with Mohini Ranjan Das Nillan of Uttar Lakhipur, P.- S. Koliachak and committed theft of copper wires and there were several theft of transformers from villages like Betrabad, Uttar Lakhipur, Suitanganj, Nandalalpur all under Kuliachak P.S. . and then proceeded to narrate the three incidents set out in the ,,rounds of detention as some of his misdeeds . The material which was before the District Magistrate, thus, consisted of the facts and particulars extracted above from the history-sheet in addition to the three incidents set out in the grounds of detention. This material was not disclosed to the Petitioner as, according to the statement of the District Magistrate in his affidavit-in-reply, he had not taken it into account in reaching his subjective satisfaction. The question is whether this statement made by the District Magistrate in his affidavit in-reply should be accepted as correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had picked up the habit of committing thefts of copper wires and he committed thefts of copper wires and the other was that there were several thefts of transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur. So far as the first circumstance is concerned, it was merely a generalisation based on the three incidents referred to in the grounds of detention and it did not refer to any other incidents of theft of copper wires besides the three enumerated in the grounds of detention. It did not, therefore. constitute any additional material prejudicial to the petitioner which could be said to have gone into the formation of the subjective satisfaction of the District Magistrate and the non-disclosure of it to the petitioner did not have the effect of invalidating the order of detention. The second circumstance was not directed against any activity of the petitioner at all. It merely provided the background of the social malady which must have been exercising the mind of the authority charged with the administration of law and order when it said that there were several thefts of transformers from Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to categorise precisely what these Other particulars can be,, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22(5) of the Constitution or in any provision of the Act which requires that these other particulars should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are other particulars besides the, grounds of detention which are communicated to the State Government, they need not: be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these other particulars merely on the basis of a supposed intention of the legislature whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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