TMI Blog1974 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the constitutional constraints under art. 22 and the procedural safeguards of the Act (the Maintenance of Internal Security Act, 1971). A brief calendar bearing on the landmark events, giving the core facts relevant to the legality of the detention, is necessary right at the beginning. The order of the District Magistrate, Burdwan, which cast the petitioner into jail recited that he was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community the direction for detention under S. 3 of the Act was being made, impeccably adhering to the mantra of the law. The, grounds which induced the authority s satisfaction were concomitantly furnished as required by S. 6(1), read with s. 3(2), of the Act. "You are being detained" runs the communication .... on the grounds that you have been acting in a manner prejudicial to the supplies and services essential to the community as evidenced by the particulars given below :--" Three specific instances were set out of November 21, 1971, November 24, 1971 and January 13, 1972-all over seven months prior to the detention order alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal biography of the petitioner, and, indeed, counsel for the State fairly stated that the opinion and the advice were based upon the specific instances furnished to the petitioner in the grounds of detention as well as on the dossier furnished by the Superintendent of Police, a copy of which has been produced in Court. It looks as if this is a routine procedure and there is a proforma for the history sheet. Column 7 thereof, apart from setting out the three instances communicated to the detenu also mentions certain relevant and injurious circumstances relating to the petitioner, which may be extracted here : "The subject Bhut Nath Mete s/o L. Sambhu Nath Mete of Belari, P.S. Ausgram, Dist. Burdwan, was born in a poor family. He got no education in his childhood. He worked is a day labour. He used to mix up with the notorious wagon breakers and antisocial elements. This inspired in him the criminal propensities which shaped his future career. But to his association with the railway criminals and antisocial elements he developed the spirit of lawlessness and acquired special aptitude for anti-social activities and acts prejudicial to the maintenance of supplies and services es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute power corrupts absolutely was for them no new knowledge, and Lord Atkin s great words in Liversidge V. Anderson([1942] A. C. 205) that amid the clash of arms the laws are not silent, that they may be changed, but they speak same language in war and peace, reverberated in their ears. Therefore, where freedom is in peril and justice is threatened the citizen shall receive the fullest protection from the Court within the four corners of art. 22, benignantly stretched, and the safeguards of the Act liberally interpreted-within legitimate limits. The worth of the human person is a cherished value carefully watched over by the Court. Such is the judicial perspective in the application of art. 22 to the MISA, which it contains, controls and animates. Indeed, this Court. by a series of creative pronouncements has built into vast powers vested in the Administration by the MISA and its predecessors legal bulwarks, breakraters and blinkers which have largely humanised the harsh authority over individual liberty otherwise exercisable arbitrarily by executive fiat. In this case, we, are concerned with a limited canvass, for, in a sense, the court s control through review is peripheral, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided aga inst the improper exercise of the power must be jealously watched and enforced by the Court. In this cast;, the petitioner has the right, under article 12(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 requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22."(1). The strict construction of the statute setting the court s face sternly against encroachment on individual liberty, keeping the delicate balance between social security and citizens freedom, is perfectly warranted by this Court s observation in Kishori Mohan Bera v. State of West Bengal(A. 1. R. 1972 S. C. 1749) "The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts. Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently." The attack on the order of detention has been delivered on the following grounds : (1) that the grounds are ambivalent, vague and void; (2) that the particulars suffer from insufficient communication thus crippling the constitutional right of representation; (3) that the detention is mala fide having been made with ulterior and extraneous purpose of making up for the discharge of the petitioner in the, criminal cases; (4) that a few acts of theft, not proximate in time to the detention order after judicial proceedings had failed, have no rational relation to potential prejudicial activities to stanch which it professes to have been made; (5) that the materials impelling the detention order and supplied to the Government and the, Board add substantially to the facts disclosed to the detenu thus hitting him below the belt and denying him the plenary opportunity to answer the uncommunicated but damaging charges with a futuristic import; (6) that the MISA violates art. 22(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 260, 270) Lord Dunnedin met it thus : "That is true. But the fault, if fault there be, lies in the fact that the British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the King, an absolute power untrammeled by any written instrument obedience to which may be compelled by some judicial body. The danger of abuse in theoretically present : practically, as things exist, it is in my opinion absent." And Lord Wright in Liversidge v. Anderson([1942] A. C. 206) added effect to the point in these words : "The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency." of course, the British have no written constitution but the argument remains. In the recent ruling of the Privy Council in Hinakan v. Government of Malaysia([1970] A. C. 379; 390; 391), the vires of a proclamation of emergency was put in issue as unconstitutional and a fraud on power. The Judicial Committee made short shrift of the submission in these wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the continuance of emergency void. Nor are we impressed with the argument that S. 3 (3) and S. 10 violate art. 22(5) of the Constitution. The vice, according to counsel, is that the detaining authority forwards to Government not merely the grounds of detention but "such other particulars as in his opinion have a bearing on the matter"--which matter may be beyond what is communicated to the detenu. If so, the effective opportunity to make representations against such extra material is absent and the right under art. 22 (5) is stultified. No doubt, the soul of art. 22 is the fair chance to be heard on all particulars relied on to condemn the detenu to preventive confinement. But s. 3(3) does notcannot- transcend this trammel and never states that particulars conveyed to Government and eventually to the Board may be behind the back of the detenu. Reading the provisions literally and as owing allegiance to art. 22(5), it is right to say that all particulars transmitted under s. 3(3) beyond the grounds of detention must, if they have a bearing on the determination to detain, in no way detract from the effectiveness of the detenu s right of representation about them. The guarantee of ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by proof of guilt in court. This is an instrument for protecting the community against specially injurious types of anti-social activity statutorily enunciated. If extraneous motives adulterate the use of power, the court must nullify it. Observations in Rameshwar Lal v. State of Bihar([1968] 2 S. C. R. 505; 511) serve as a warning : "The appellant was tried for the offence and acquitted as far back as February 1967. This ground discloses carelessness which is extremely disturbing. That the detaining authority does not know that the appellant was tried and acquitted months before, and considers the pendency of the case against him as one of the grounds of detention shows that due care and attention is not being paid to such serious matters as detention without trial. If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not. One can understand the use of the case if the acquittal was technical but not when the case was held to be false." After all, however well-meaning Government may be, detention power cannot be quietly used to subvert, supplant or to substitute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going by the seriousness of the matter, the proof is, deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of administration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit. The next bust would then be the oath of one in the Secretariat Who officially is cognisant of or has participated in the process of approval by Government not one who, long later, reads old files and gives its gist to the court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty. In some cases where a valid reason for the District Magistrate s inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary s affidavit. This should, however, be the exception, not the rule. We may refer in this context to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of this country be it great as it may, from this girl s admission is as nothing compared to the menace to free institutions inherent in procedures on this pattern.... The plan that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the ma levolent, the misinformed, the meddlesome and the corrupt to play the role of informer undetected and uncorrected." What has to be underscored is the obligation to make a fair communication of the grounds and the particulars sufficient to enable the detainee to explain his innocence. Faceless informers flourish where confrontation by cross examination is absent, and orders with the inscrutable face of a sphinx are not uncommon where subjective satisfaction is sufficient. All the more reason why there should be a meaningfull comprehensive furnishing of essential particulars so that the executive agencies may be rigorously held to the standards implied by the courts in art. 22(5). Otherwise, in the language of Justice Frank further, "he that takes the procedural sword shall perish with that sword." Administrative absolution is incongruous with our constitutional scheme. If control of liberty in an emer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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