TMI Blog1950 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition. The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution. In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution. Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the Constitution either directly or through officers subordinate to him. The legislative powers of the Union are divided between the Parliament a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving, in the territory of India, the force of law. The rest of this Part is divided in seven divisions. Right to Equality is found in articles 14-18, Eight to Freedom in articles 19-22, Right against Exploitation in articles 23 and 24, Right to Freedom of Religion in articles 25-28, Cultural and Educational Rights in articles 29 and 30, Right to Property in article 31 and Right to Constitutional Remedies in articles 32-35. In this case we are directly concerned only with the articles under the caption Right to Freedom (19-22) and article 32 which gives a remedy to enforce, the rights conferred by this Part. The rest of the articles may have to be referred to only to assist in the interpretation of the above-mentioned articles. It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control. The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me argument was urged in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argument is advanced in a case which deals with preventive detention, if correct, it-should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code. So considered, the argument must clearly be rejected. In spite of the saving clauses (2)to(6) permitting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, such result is clearly not the outcome of the Constitution. The article has to be read without any pre-conceived notions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses. If there is a legislation directly attempting to control a citizen s freedom of speech or expression, or his right to assemble peaceab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself is faulty. Because certain words may be considered superfluous (assuming them to be. so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution. On the contrary, in my opinion, reading sub-clause (d) as a whole the words territory of India are very important. What is sought to be protected by that sub-clause is the right to freedom of movement, i.e., without restriction, throughout the territory of India. Read with their natural grammatical.. meaning the sub-clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article. Sub-clause (d) has nothing to do with detention, preventive or punitive. The Constitution mentions a right to freedom of movement throughout the territory of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper. to omit any word which has a reasonable and proper place in it or to refrain fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention urged in respect of article 19 fails. It was argued that article 19 and article 21 should be read together as implementing each other. Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure established by law. Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19. In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning. It is the first article under the caption Right to Freedom . It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India. These rights read by themselves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordinarily has. Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move freely throughout the territory of India is an entirely different concept from the right to personal liberty contemplated by article 21. Personal liberty covers many more rights in one sense and has a restricted meaning in another sense. For instance, while the right to move or reside may be covered by the expression , personal liberty the right to freedom of speech (mentioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen. They form part of the liberty of a citizen but the limitation imposed by the word personal leads me to believe that those rights are not covered by the expression personal liberty. So read there is no conflict between articles 19 and 21. The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles. As already mentioned in respect of each of the rights specified in sub-clauses of article 19 (1) specific limitations in respect of each is provided, while the expression personal liberty in article 21 is generally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. I do not think that is the intention. It seems to me improper to read article 19 as dealing with the same subject as article 21. Article 19 gives the rights specified therein only to the citizens of India while article 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover, the protection given by article 21 is very general. It is of law --whatever that expression is interpreted to mean. The legislative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19. In my opinion therefore article should be read as a separate complete article. Article 21 which is also in Part III under the caption Right to Freedom runs as follows :- No person shall be deprived of his life or personal liberty except according to procedure established by law. This article has been strongly relied upon by the peti tioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading. As regards the American Constitution its general structure is noticed in these words in The Government of the United States by Munro (5th Edition) at page 53: The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being woven on the roaring loom of time . That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point. The same aspect is emphasized in Professor Willis s book on Constitutional Law and Cooley s Constitutional Limitations. In contrast to the American Constitution, the Indian Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of law formula. Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity. In The Municipal Council of Sydney v. The Commonwealth((1904) 1 Com. L.R. 208.), it was thought that individual opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim Ark((169) U.S 649 at 699.). The result appears to be that while it is not proper to take into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the present case the debates were referred to to show that the expression due process of law was known to exist in the American Constitution and after a discussion was not adopted by the Constituent Assembly in our Constitution. In Administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The word law as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning. Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows :- No person shall be deprived of his property save by authority of law. It is obvious that in that clause law must mean enacted law. The object of dealing with property under a different article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word law a different meaning than the one given in article 21. The world established according to the Oxford Dictionary means to fix, settle, institute or ordain by enactment or agreement. The word established itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of jus to law in article 21. The phrase procedure established by law seems to be borrowed fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice. (1) [1924] 2 Irish Reports K.B. 104. (2) [1931] A.C. (62 at 670. In The King v. The Secretary of State for Home Affairs(1), Scrutton LJ. observed: A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It seems very arguable that in the whole set-up of Part III of our Constitution these principles only remain guaranteed by article 21. A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention. In this. connection it may be noticed that the articles in Part III deal with different and separate rights. Under the caption Right to Freedom articles 19--22 are grouped but each with a separate marginal note. It is obvious that article 22 (1) and (2) prescribe limitations on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of subclause (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 providing 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 learned Attorney-General contended that the subject of preventive detention does not fall under article 21 at all and is covered wholly by article 22. According to him, article 22 is a complete code. I am unable to accept that contention. It is obvious that in respect of arrest and detention article 22 (1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22 (3), but safeguards in connection with such detention are provided by clauses (4) to (7) of the same article. It is ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act. Article 22 (4) opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub-clause (a)), and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention. This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b). Again the whole of this sub-clause is made inoperative by article 22 (4) (b) in respect of an Act of preventive detention passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body. After such representation was made, another advisory board had to consider it, but it was not necessary to make the representation itself to a third party. Article 22 (4) and (7) permit the non-establishment of an advisory board expressly in a parliamentary legislation-providing for preventive detention beyond three months. If so, how can it be urged that the nonestablishment of an advisory. board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7). Sub-clause (a) is important-for this case. In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and excludes the necessity of consulting an advisory board, if the opening words of the sub-clause are complied with. Subclause (b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is diffi cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and (2) (1939) F.C.R. 18 at 37. paramount law settled by the deliberate wisdom of the nation that one can find a safe and. solid ground for the authority of Courts of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular object. It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is. a sufficient standard to prevent the legislation being vague. In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails. It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in article 22 (7) (b). A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section. It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is not contemplated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated. Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and. (6) and in my opinion infringes no provision of the Constitution. It was argued that this gave only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a citizen of the United States. At page 263 the majority judgment contains the following passage :-- If for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the power of the Congress to pass exclusion laws. That the decision may be entrusted to an executive officer, and that his decision is due process of law, was affirmed and explained in several cases. It is unnecessary to repeat the often-quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray v. Hoboken Land and Improvement Company (18 HO.W. 272 at 280.), to. show that the requirement of a judicial trial does not prevail in every case. Again, I am not prepared to accept the contention that a right to be heard orally is an essential right of procedure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -disclosure of facts. That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid. Section 10 (3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right. It must be noticed that article 22 (1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 (3) in the case of legislation dealing with preventive detention. Moreover,. the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered -against the constitutional rights ? It was pointed out that section 10 (3) prevents even the disclosure of a portion of the report and opinion of the advisory board.. It was argued that if so how can t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nger than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b)the security of a State or the maintenance of public order. It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in section 12. Relying on the wording of these two sub-sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied. This did not comply with the requirement to specify either the circumstances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution. Circumstances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give the Parliament ample discretion. When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly permitted by article 22 (7). Under article 22 (4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months. As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation. It has been held to depend on the nature of the tribunal. The right to make a representation is affirmed by the Constitution in article 22 (5) and finds a place in the impugned Act. The right to an orderly course of procedure to the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (7) (a) and (b), has also been thus provided in the Act. It seems to me therefore that the petitioner s contentions even on these points fail. Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even infringed the right given by article 22 (5) of the Constitution. It runs as follows: 14. (1) No Court shall, except for the purposes of a prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 22 (5) do not exclude that right of the Court. Section 14 of the impugned Act appears to be a drastic provision. which requires considerable support to sustain it in a preventive detention Act. The learned Attorney-General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe. I do not agree. This argument is clearly not sustainable on the words of article 22 clauses (5) and (6). The Government has the right under article 22 (6)not to disclose facts which it considers undesirable to disclose in the public interest. It does not permit the Government to refrain from disclosing grounds which fall under clause (5). Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence. Moreover, the position is made clear by the words of article 22 (5). It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made. It is there fore ,essential that the grounds must be connected with the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated in the petitioner s application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act. The Act which is impugned was enacted by the Parliament on the 26th February, 1950, and will cease to have effect on the 1st April, 1951, save as respects. things done or omitted to be done before that date. The main provisions of the Act are set out in sections 7, 8, 9, 10,11, 12 and 14. Section a (1) provides that the Central Government or the State Government may- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is. a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government, as the case may be, thinks fit. Section 12,. which is a very important section, as we shall presently see, runs as follows :-- 12 (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 foreign powers or the security of India; or (b) the security of a State or the maintenance of public order. (2) The case of every person detained under a detention order to which the provisions of sub-section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State, Government, by such Government, and where the order was made by any officer specified in sub-section (2) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights; (6) Right to property; and (7) Right to constitutional remedies. Most of the articles which are said to have been disregarded occur under the heading Right to freedom, these articles being articles 19 (1) (d), 21 and 22. Another article which is also said to have been violated is article 32, under which the present application for a writ of habeas corpus purports to have been made. Article 19 (1)is divided into seven sub-clauses and runs as follows:- All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. Clauses (2), (3), (4), (5) and (6) of this article provide that nothing in clause (1) shall affect the operation of any existing law in regard to the rights under that clause, under certain conditions which are mentioned therein. Clause (5), with which we are directly concerned and whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confinement. Russell in his book on Crimes and Misdemeanours (8th Edition, volume 1, page 861), dealing with the offence of false imprisonment states as follows :-- False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place or by confining him in a prison or police station or private place, or by detaining him against his will in a public place ........... the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty. Such interference with the liberty of another s movements is unlawful, unless it may be justified ...... Again, Dr. Gour in dealing with the offence of wrongful restraint in his book on The Penal Law of British India (5th Edition, page 1144) observes as follows :-- Following the principle that every man s person is sacred and that it is free, law visits with its penalties those who abridge his perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m surprised to find that the expression throughout the territory of India, which was used to give the widest possible scope to the freedom of movement, is sought to be construed as an expression limiting the scope and nature of the freedom. In my opinion, the words throughout the territory of India, having regard to the context in which they have been used here, have the same force and meaning as the expression to whatsoever place one s own inclination may direct used by Blackstone, or the expression freedom to be ,able to go whithersoever one pleases used by Coleridge J. in Bird v. Jones (7 Q.B. 742.). I am certain that neither of these authorities contemplated that the freedom of movement which is vouchsafed to a British citizen, is guaranteed beyond the territorial limits of British territories. The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts. The view which has .been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 (1) (d), but, in the Calcutta High Court, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or staying in any particular area, etc. The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public (which expression means the same thing as public interests ) and I think that the law in regard to preventive detention is fully covered by the expression restrictions imposed in the public interests. But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words for the protection of the interests of any Scheduled Tribe. A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act, 1935, as well as to certain laws made for Chota Nagpur, Santhai Pargangs and .other localities will show that great importance has been attached in this country to. the protection and preservation of the members of the scheduled tribes .and maintenance of order in tribal areas, and this, in my opinion, is sufficient to account for the special mention of the scheduled tribes in clause (5). It may, at first sight, appear to be a relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas; (3) that tribal areas and scheduled tribes are, kindred subjects as would appear from the Fifth Schedule appended to the Constitution; and (4) that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the interests of persons living in those areas. This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and consequently the mere mention of scheduled tribes in clause (5) does not necessarily exclude laws relating to preventive detention from the scope of article 19 (5) The same remarks apply to the ordinance called The Restriction and Detention Ordinance, 1944 (Ordinance No. III of 1944) which empowered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety, maintenance of public order as well as maintenance of peaceful conditions in tribal areas, etc. II. It is also argued that since preventive detention amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt it in accordance with their ideas of whether it appeals to their reason. But ideas of reasonableness or otherwise are apt to vary widely. Take for example, laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not. It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts ................ [Rattan Roy v. The State of Biharl. The obvious and strictly legal reply to this argument is that the consideration, which has so greatly weighed with the learned Chief Justice, is not enough to cut down the plain meaning of the general words used in article 19 (5) of the Constitution. As has been pointed out in a number of cases, in construing enacted words, we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language -used [King Emperor v. Benoari Lal Sharma and others ( [1945] F.C.R. 161 at p. 177)I Apart from this aspect of the matter, I agree with one of the learned Judges Of the Calcutta High Court in his remark that no calamitous or unto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a trial for committing a crime and after his guilt has been established in a competent Court of justice. A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted. The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 (1) (d) has been violated. But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way. IV. It was pointed out that article 19 being confined to citizens, the anomalous situation will follow that in cases of preventive detention, a citizen will be placed in a better position than a non-citizen, because if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non-citizen has been detained his case will not be open to such review. In this view, it is said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail or take away my right beyond the limits imposed by clause (5)of article 19. This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations. It is true that if you put a man under detention, he cannot move and therefore he is not in a position to exercise the right guaranteed under article 19 (1) (d). but this is only the physical aspect of the matter and a person who is bed-ridden on account of disease suffers from a similar disability. In law, however,. physical duress does not deprive a person of the right to freedom of movement. If he has been detained under some provision of law imposing restrictions on the freedom of movement, then the question will arise whether the restrictions are reasonable. If he has been detained under no provision of law or under some law which is invalid, he must be set at liberty. To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imes used in a wide sense and embrace freedom of speech, freedom of .association, etc. These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word personal. A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 (1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority. The words used in article 19 (1) (d) must be construed as they stand, and we have to decide upon the words themselves whether in the .case of preventive detention the right under article 19 (1) (d) is or is not infringed. But, as I shall point out later, however literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringement of the right guaranteed in article 19 (1) (d). Having dealt with the principal objections, I wish to revert once again to the mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this freedom is anything different from what is otherwise called personal liberty. The problem of construction in regard to this particular right in the Constitution of Danzig is the same as in our Constitution. Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception, and the words used in article 10 (1) (d) must be construed according to this universally accepted legal conception. This conclusion is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based. In the first world war, the British Parliament passed the Defence of the Realm Consolidation Act, in 1914, and a number of regulations were made under it including regulation 14-B, which permitted the Secretary of State to subject any person to such obligations and restrictions as hereinafter mentioned in view of his hostile origin or associations. Lord Atkin in referring to this regulation said in Liversidge v. Sir John Anderson ([1942] A.C. 238), that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers (Defence)Act, 1939. The regulation which directly dealt-with detention orders was 18-B. This regulation and a number of other regulations have been placed in Part I under the heading Restrictions (1) [1917] A.C. 269. (2) [1917] A.C. 272. On movements and activities of persons . The classification is important, because it meets two principal arguments advanced in this case. It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement. I have noticed that movement is used in plural, and the heading also refers to restrictions on activities, but, having regard to the subjects classified under this head, movement undoubtedly refers to physical movement and includes such movements as entering a particular locality, going from one place to another, etc., i.e., the very things to which article 19 (1) (d) is said to have reference. In Liversidge s case, in construing the provisions of the Act of 1939, Viscount Maugham observed as follows :-- The language of the Act of 1939 (above cited) shows beyond doubt that Defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernative interpretation is accepted. We have only to ask ourselves: Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention ? I think I should refer here once more to the fact that in the Defence of the Realm Regulations and Defence of India Rules, preventive detention is classed under the heading Restriction of movements and activities. Movement is here used in plural and refers to that very type of movement which is said to be protected by article 19 (1) (d), moving from one State or place to another, visiting different localities, etc. One of the objects of preventive detention is to restrain the person detained from moving from place to. place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, internment and certain other forms of restriction on movement have always been treated as kindred matters belonging to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub-clause (d) and other sub-clauses of article 19 (1). The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is, often only notional. One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement. Beside% while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them. A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business. In such a case, the rights referred to are lost only in theory and not as a matter of substance. I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had, in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der article 19 (5). The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason. I will now pass on to the consideration of article 21, which runs as follows :- No person shall be deprived of his life or personal liberty except according to procedure established by law. Here again, our first step must be to arrive at a clear meaning of the provision. The only words which cause some difficulty in the proper construction of the article are procedure established by law. The learned Attorney-General contended before us that the word law which is used in article 21 means State-made law or law enacted by the State. On the other hand, the learned counsel for the petitioner strongly contended that the expression procedure established by law is used in a much wider sense and approximates in meaning to the expression due process of law as interpreted by the Supreme COurt of America in the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoning on which such decisions may be rounded: Missouri Pacific Railway Co. v. Humes (1). It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words according to procedure established by law which occur in the Japanese Constitution framed in 1946. It will not be out of place to state here in a few words how the Japanese Constitution came into existence. It appears that on the 11th October, 1945. General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was. decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander s Headquarters. Subsequently the Chief of this Section ,and the staff drafted the Constitution with the help of American constitutional lawyers who were called to assist the Government Section in the task. This Constitution, as a learned writer has remarked, bore (1) 115 U.S. 512 at page 513. on almost every page evidences of its essentially Western origin, and this characteristic was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to due process of law, and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words procedural due process. But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits. The word law may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as a or the or by such words as any, all, etc., and sometimes it is used without any such prefix. But, generally, the word law has a wider meaning when used in the abstract sense without being preceded by an article. The question to be decided is whether the word law means nothing more than statute law. Now whatever may be the meaning of the expression due process of law, the word law is common to that expression as well as procedure established by law and though we are not bound to adopt the construction put on law or due process of law in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them. I will there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d oppression, and can never be upheld where justice is justly administered: Gatpin v. Page( 85 U.S. 18). Thus, in America, the word law does not mean merely State-made law or law enacted by the State and does not exclude certain fundamental principles of justice which inhere in every civilized system of law and which are at the root of it. The result of the numerous decisions in America has been summed up by Professor Willis in his book on Constitutional Law at page 662, in the statement that the essentials of due process are: (1) notice, (2) opportunity to be heard, (3) an impartial tribunal, and (4) orderly course of procedure. It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard. Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case. So far as orderly course of procedure is concerned, he explains that it does not require a Court to stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. In the same case Erie C.J. observed :-- It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding...... I do not quite agree with that; ......the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down. The observations made by Erie C.J. were quoted and applied by Sir Robert Collier in Smith v. The Queen (3 A.C. 614.), and the observations of Lord Campbell in Regina v. The Archbishop of Canterbury (1E. E. 559.) were to the. same effect. (1) 14 C.B. (N.S.) 180 A similar opinion was expressed by Sir GeorgeJessel in Fisher v. Keane (H. Ch. D. 353), Labouchere v. Earl of Wharncliffe (13 Oh. D. 346.), and Russell v. Russell (14 Ch. D. 471). In the last mentioned case, he observed as follows :-- It [Wood v. Woad ([1874] L.R. 9 Ex. 190.)] contains a very valuable stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Lapointe v. L Association etc. de Montreal ...... In Local Government Board v. Arlidge([1915] A.C.120.), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, c. Act, without an oral hearing and without being allowed to see the report made by the Board s Inspector upon public local inquiry. The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the community and whose character was that of an organization with executive functions. The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. Commenting upon this case, which is generally regarded as an extreme case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based upon the foundation of this principle, and it is difficult to see that it has not become part of the law of the land and does not inhere in our system of law. If that is so, then procedure established by law must include this principle, whatever else it may or may not include. That the word law used in article 21 does not mean only State-made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments. In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law. I am aware that some Judges have ex pressed a strong dislike for the expression natural justice on the ground that it is too vague and elastic, but where there are well-known principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that law in this article means valid law and procedure means certain definite rules of proceeding and not something which is a mere pretence for procedure. I will now proceed to examine article 22 of the Constitution which specifically deals with the subject of preventive detention. The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22. The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article, the operation of articles 19 and 21 cannot be excluded. The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated. I will now proceed to analyse the article and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) is justified or not. Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether prolonged detention (detention for more than three months)is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision. The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view. The next question which we have to discuss relates to the meaning and scope of article 22 (7)(a) which runs as follows:- 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f List I are grouped in sub-clause (1) of clause (a). The subjects in this group are three in number and, for convenience of reference, I shall hereafter refer to them as A, B and C. In sub-.clause (ii), we find grouped two of the matters referred to in item 3 of List III, these being security of the State and the maintenance of public order. These two subjects, I shall refer to as D and E. In sub-clause (iii), reference has been made to the third matter in item 3 of List III, and I shall refer to this subject as F. With this classification, let us now turn to the Constitution itself. On reading articles 22 (4) and 22 (7) together, it would be clear that so long as article 22 (4) (a) holds the field and Parliament does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups. Article 22 (7) however practically engrafts an exception. It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses (4) (a) and 7 (a) of article 22 are to be read:--(1) that clause (4) (a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory board, and clause (7) (a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7) (a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board. Looking at the substance and not merely at the words, I am inclined to hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far I have proceeded on that footing. But it seems to me that it will make no difference to the ultimate conclusion, whichever of the two views we may adopt. Even on the latter view, it must be recognized that the law which the Constitution en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board. Hence article 22 (7) (a) which purports to be a protective provision will cease to serve its object unless it is given a reasonable interpretation. To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances. It was contended that the expression class or classes of cases is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class. At first sight, it seemed to me to be a plausible argument,, but the more I think about it the more unsound it appears to me. The chief thing to be remembered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances. Under the Constitution, the Parliament has to prescribe the class or classes, acting within the limits of the power granted to it unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s possible can be illustrated by reference to regulation 18-]3 of the British Defence of the Realm Regulations. This regulation was made under an Act of 1039 which authorized the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm. The two matters public safety and defence of the realm are analogous to some of the heads stated in Lists I and III. It will be instructive to note that under these two heads, regulation 18-B has set forth several subheads or class or classes of cases in which preventive detention could be ordered. These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention. The classes set out are these :--(1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view. I will now try to sum up the result of a somewhat protracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the impugned Act. It appears to me that article 22 deals with three classes of preventive detention :-- (1) preventive detention for three months; (2) preventive detention for more than three months on the report of the advisory board; and (3) preventive detention for more than three months without reference to the advisory board. If one has to find some kind of a label for these classes for a clear understanding of the subject, one may label them as dangerous, more dangerous and most dangerous. Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r required by the Constitution. It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped. I have sufficiently dwelt on this part of the case and shall not repeat what I have already said. But I must point out that even if it be assumed that the view advanced by the learned Attorney-General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constituting a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two-fold error :--. (1) the word and which links class or classes with circumstances in article 22 (7) (a) has been wrongly construed to mean or ; and (2) the distinction between circumstances and class or classes has been completely ignored and they are used as interchangeable terms. The first error appears to me to be quite a serious one, because though the Constitution lays down two requirements and insists on the prescription of circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have not been detained without reason. If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right. The mere reference to an advisory board in article 22 (4) (a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits. The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day. In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an advisory board for the purpose contemplated in clause (4) (a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person. It was argued that article 22 is a code by itself and the whole law of preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds. I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority concerned to communicate to a detenu the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order. Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with article 22 (4) (a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases. The real sections which appear to me to offend the Constitution are sections 12 and 14. I have already dealt with the principal objection to section 12, while discussing the provisions of article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases to which I have referred also illustrate the same principle, as will appear from two short extracts which I wish to reproduce. In Rex v. Halliday ([1917] A.C. 260atp. 271.), Lord Atkinson observed as follows :-- However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement. In Liversidge v. Sir John Anderson ([1942] A.C. 206 at p.257.), Lord Macmillan struck the same note in these words :-- The liberty which we so justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged. At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country s cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention. These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m aware that both in England and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters. I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country. Granting then that private rights must often be subordinated to the public good, is it not essen tial in a free community to strike a just balance in the matter ? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs. Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government. PATANJALI SASTRI J.--This is an application under article 32 of the Constitution of India for releasing the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forceable, and article 13 (1) declares that all existing laws inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void. Clause (2) of the article, on which the petitioner s contention is primarily founded reads as follows: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. As the constitutional inhibition against deprivation or abridgement relates only to the rights conferred by this Part, it is necessary first to ascertain the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, secondly, to determine whether the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions. The first question turns on the proper interpretation of the relevant articles of the Constitution, and the second involves the consideration of the provisions of the impugned Act. Mr. Nambiar appearing for the petitioner advanced three main lines of argument. In the first place, the right to move freely throughout the territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the interests of any Scheduled Tribe. Reading these provisions together, it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which narrow- minded provincialism may seek to interpose. The use of the word restrictions in the various sub-clauses seems to imply, in the context, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words restriction and deprivation are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions (articles 19-22) relating to Right to -Freedom, article 19 seems to my mind to pre--suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests. It was said that subclause (f) would militate against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horising preventive detention, infringed the right to freedom of speech and expression, its validity should be judged by the reservations in clause (2), and, as it failed to stand that test, it was unconstitutional and void. Mr. Nambiar did not seek to go so far. He drew a distinction between the right conferred by sub-clause (d) and those conferred by the other sub-clauses. He urged, refer ring to Blackstone s Commentaries, that personal liberty consisted in moving one s person to whatever place one s inclination might direct, and that any law which deprived a person of such power of locomotion was a direct invasion of the right mentioned in sub-clause (d), whereas it inter-fered only indirectly and consequentially with the rights mentioned in the other sub Clauses. There is no substance in the distinction suggested. It would be illogical, in construing article 19, to attribute to one of the sub-clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc-. tion between one right and another in the group. All the rights mentioned in clause (1) are equally essential elements in the liberty of the individual in any civilised and demo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constituent Assembly, to whose Report reference was freely made by both sides during the argument, recommended that the word liberty should be qualified by the insertion of the word personal before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13 (now article 19). The acceptance of this suggestion shows that whatever may be the generally accepted connotation of the expression personal liberty, it was used in article 21 in a sense which excludes the freedoms dealt with in article 19, that is to say, personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India. It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation. This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act. It is, however, to be observed that article 19 confers the rights therein specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing 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 sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed 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, communicate to such person the grounds on which the order has been made and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealed to the Preamble of the Constitution as the guiding star in its interpretation to support his thesis that, in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain fundamental rights which are justiciabke, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the socalled fundamental right to life and personal liberty would have no protection against legislative action, and article 13 12) would be rendered nugatory. There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, socalled, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in the American model. Madison (who played a prominent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are against common right and reason. Though this doctrine was later discarded in England as being a warning rather than an authority to be followed [per Willes J. in Lee v. Dude and Torrington Ry. ((1871) L.R. 6 C.P. 576, 58)] it gained ground m America, at first as a weapon in the hands of the Revolutionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for establishing the supremacy of the judiciary [see Calder v. Bull ((1798) 3 Dallas 386.)]. In the latter half of the 19th century, this doctrine of a transcendental common law or natural justice was absorbed in the connotation of the phrase due process of law occurring in the Fifth and Fourteenth Amendments. By laying emphasis on the word due, interpreting law as the fundamental principles of natural justice and giving the words liberty and property their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power. And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of police power, i.e., the power of Government to regulate private rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient for depriving a person of his life or personal liberty. He submitted that the Constituent Assembly definitely rejected the doctrine of judicial supremacy When it rejected the phrase due process of law and made the legislative will unchallengeable, provided only some procedure was laid down. The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase procedure established by law must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe. Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the historical background. A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord. The Court could only search for the objective intent of the legislature primarily in the words used in the enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson s property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity. The analogy is misleading. Clause (2) of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses (4) and (6) which are of a transitory character. The constitutional safeguard of the right to property in the said article is, therefore, not so illusory or ineffective as clause (1) by itself might make it appear, even assuming that law there means ordinary legislation. Much reliance was placed on the Irish case The King v. The Military Governor of Hare Park Camp ([19241 2 I.R. 104) where the Court held that the term law in article 6 of the Irish Constitution of 1922 which provides that the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law meant a law enacted by the Parliament, and that therefore the Public Safety Act of 1924 did not contravene the Constitution. The Court followed The King v. Halliday([1917] A.C. 260.) where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the enforcement of such prohibition by means of a judicial review (article 32) is, in my opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State-made laws. After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word established which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. Procedure established by law may well be taken to mean what the Privy Council referred to in King Emperor v. Benoari Lal Sharma ([1945] F.C.R. 161,175.) as the ordinary and well-established criminal procedure, that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the country. Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor-General and trial by ordinary Courts unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution. The only alternative to the construction I have indicated above, if a constitutional transgression is to be avoided, would be to interpret the reference to law as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment (article 368) that could modify or override a fundamental right without contravening article 13 (2). The question next arises as to how far the protection under article 21, such as it has been found to be, is available to persons under preventive detention. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. I am unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection afforded for the legitimate exercise of personal liberty. In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention. It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule. Of the four essentials of the due process on which Mr. Nambiar insisted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, learned counsel submitted, the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words such detention in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Constitution is found to afford no higher protection for the personal liberty of the individual. Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner before us. In the first place, it was contended that section 3, which empowers the Central Government or the State Government to detain any person if it is satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention. TIm argument proceeds on the assumption that the procedure established by law is equivalent to the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peated the matters or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution. What Parliament has to do under clause(7) of article 22 is 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 without obtaining the opinion of an advisory board. It was said that clause (4) (a) provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7) (a) made provision for special cases of detention for more than three months without the safeguard of the advisory board s opinion, for aggravated forms of prejudicial conduct. In other words, clause (4) (a) laid down the rule and clause (7) (a) enacted an exception. It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assistance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period ? All that would be necessary and sufficient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12. While enumeration and classification in detail would undoubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention. Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in section 12. Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where prejudicial act is defined by enume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which a person may be detained for the longer period. In other words, the classification itself may be such as to amount to a sufficient description of the circumstances for purposes of clause (7). The circumstances which would justify precautionary detention beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circumstances are mentioned apart from the matters referred to in clauses (a) and (b) of sub-section (1). It would indeed be singular for the Court to strike down a parliamentary enactment because in its opinion a certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inadequate. Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representation made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub-section (2) which makes it an offence for any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under article 13 (2) to be void. This however, does not affect the rest of the Act which is severable. As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy, if so advised, on the basis of those grounds. In the result, the application fails and is dismissed. MAHAJAN J.--The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950. This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country. A.K. Gopalan, the petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the Preventive Detention Act, 1950 (Act IV of 1950) on the 27th February 1950. It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral, social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution. It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words. It is difficult on any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition except in so far as the express words of a written Constitution give that authority. Article 13 (2) of our Constitution gives such an authority and to the extent stated therein. It says that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void. Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, communicate 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 preventive 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 presumed 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law of preventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive detention [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 article 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 counsel 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, art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady 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 establish his innocence. As, in my opinion, the consideration 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 Constitution. 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 provided 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 procedure in respect of a law of preventive deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant, 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 provision 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 reasonableness. 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 unnecessary in article 22 if a law on this subject was justiciable. 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 subject of preventive detention. Under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws 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 therefore underlying article 21 have been kept in view in drafting 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 Constitution. 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 detaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of a machinery for the investigation of the contentions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief. It is, however, unnecessary to express any opinion as to the precise remedy open to a detained person in this respect. The absence of a provision of this nature in the statute however would not make the law wholly void. Section 9 of the Act makes reference to the advisory board obligatory in cases falling under sub-clause (iii) of clause (a) or clause (b) of sub-section (1) of section a within six weeks of the order. The procedure to be followed by the advisory board is laid down in section 10. Parliament has been authorized to lay down such a procedure to be followed by an advisory board in subclause (c) of clause (7). It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evidence to establish his innocence. In my opinion, this criticism is not sound and does not in any way invalidate the law. The advisory board has been given the power to call for such information as it requires even from the person detained. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government, by such Government, and where the order was made by any officer specified in sub-section (2) of section a, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be. The section purports to comply with the conditions laid down in clause (7) of article 22. It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted. The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the classes of cases in which authority was conferred by clause (7) to dispense with an advisory board. So far as I have been able to gather from opinions of text-book writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch cases alone arbitrary detention could be held justifiable by law beyond a period of three months. It was argued by the learned counsel for the petitioner that the phrase circumstances under which, and the classes of cases in which used in clause (7) had to be construed in a cumulative sense; on the other hand, the learned Attorney-General contended that the word and had been used in this clause in the same sense as or. He further argued that even if the word and is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board. In Full Bench Reference No. 1 of 1950, Das Gupta J. of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention authorizing detention for a longer period than three months without the intervention of an advisory board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 22. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects :-- (1) Defence of India, (2) Foreign Affairs, (a) Security of India, (4) Security of the State, (5) Maintenance of public order, (6) Maintenance of supplies and services essential to the community. Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive detention for a longer period than three months without reference to an advisory board. Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made. The legislative authority under clauses (4) and (7)in my opinion, extends to all these six subjects. The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub-clause (4) The extraordinary and unusual procedure was intended, to be adopted in certain abnormal cases for which provision co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction which the framers of section 12 have placed on article 22 clause (7). I am further of the opinion that the construction placed by the learned Attorney-General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation. The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community. This subject has been put under section 9 in Act IV of 1950. Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against certain persons. According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an apprehension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three months can be ordered without reference to an advisory board. Could such an anomalous result be in the contemplation of the framers of the Constitution ? The constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classification was intended by the Constitution in clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of construction of statutes. The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen. This could never have been the intention of the framers of the Constitution. The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demarcating certain portions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it laid down certain conditions in clause (7) and it could not be considered that it provided no safeguard to them at all and that the words used in clause (7) were merely illusory and had no real meaning. Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 (5) and 32 of the Constitution. This section is in these terms:-- (1) No Court shall except for the purposes of a prosecution for an offence punishable under subsection (2), allow 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 of any representation made by him against such order, and notwithstanding anything contained in any other law, no Court shall be 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. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see the grounds that have been furnished. It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention. This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material. The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence. In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds. Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not to permit the disclosure of such grounds. It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him, the detention could not be said to be unlawful. Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased. In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases. These sentences, however, were set aside in appeal on 26th September, 1949. As regards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months imprisonment by the Madras High Court on appeal. The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950. On 25th February, 1950, the Preventive Detention Act was passed by the Parliament and on the 1st of March following, the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22, the general provision made in article 21 must apply. He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the Preventive Detention Act is in conflict with article 22 (7) of the Constitution. The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Detention Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution. In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legislative powers of the Government. The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent classes of fundamental rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32. Article 10 enumerates certain forms of liberty or freedom, the protection of which is guaranteed by the Constitution. In article 20, certain protections are given in cases of persons accused of criminal offences. Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty, except according to procedure established by law. Article 22 provides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made, makes certain special provisions for the particular form of detention known as Preventive Detention. The first contention advanced by Mr. Nambiar involves a consideration of the question as to whether Preventive Detention, which is the subject matter of the impugned legislative enactment, comes within the purview of article 19 (1) (d) of the Constitution, according to which a right to move freely throughout the territory of India is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be complied with, to make preventive detention valid in law. What these requirements are I will discuss later on. Article 22 comes immediately after article 21. It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declared, makes certain specific provisions relating to preventive detention. The subject of preventive detention is specified in and constitutes Item No. 9 in the Union legislative List and it also forms Item No. 3 in the Concurrent List. Under article 246 of the Constitution, the Parliament and the State Legislatures are empowered to legislate on this subject within the ambit of their respective authorities. Clause(3) of article 22 expressly enjoins that the protective provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention. The only fundamental rights which are guaranteed by the Constitution in the matter of preventive detention and which to that extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, for that would involve a consideration of the precise scope and meaning of article. 21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the fundamental rights relating to arrest and detention, which are secured by the first two clauses of the article. Any legislation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground. Both articles 19 and 22 occur in the same Part of the Constitution and both of them purport to lay down the fundamental rights which the Constitution guarantees. It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. In interpreting the words of a Constitution, the same principles undoubtedly apply which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd liberties. Ordinarily, every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person. On the other hand for the very protection of these liberties the society must arm itself with certain powers. No man s liberty would be worth its name if it can be violated with impunity by any wrongdoer and if his property or possessions could be preyed upon by a thief or a marauder. The society, therefore, has got to exercise certain powers for the protection of these liberties and to arrest, search, imprison and punish those who break the law. If these powers are properly exercised, they themselves are the safeguards of freedom, but they can certainly be abused. The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even punished for crimes unknown to law. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to substantive as well as to procedural law. It is not correct to say, as I shah show more fully later on, that article 21 is confined to matters of procedure only. There must be a substantive law, under which the State is empowered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down. Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a criminal trial or punishes him for the same offence more than once. These are the protections provided for by article 20. Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) of article 22. These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substituted in their place;but this is a question of the policy adopted by the Constitution which does not concern us at all. The position, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the law relating to preventive detention is concerned. Mr. Nambiar s endeavour throughout has been to establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards procedural law. This, in my opinion, would be looking at these provisions from a wrong angle altogether. Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure. It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other. The contents and subject matter of the two provisions are not identical and they proceed on totally different principles. There is no mention of any right to life in article 19, although that is the primary and the most important thing for which provision is made in article 21. If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is concerned. In the second place, even if freedom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable. It will be remembered that these rights are available only to citizens. To an alien or foreigner, no guarantee of such rights has been given. Normally all citizens would have the free right to move from one part of the Indian territory to another. They can shift their residence from one place to any other place of their choice and settle anywhere they like. The right of free trade, commerce and intercourse throughout the territory of India is also secured. What the Constitution emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned. All the citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter-State or otherwise would be allowed to set up in these respects between one part of India and another. So fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctions. The several rights are thus mentioned together as being included in the same category, while they are differentiated from the liberty of the person which is described to be inviolable except by virtue of a law in article 74 which appears just previous to this article. An analogous provision in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner: All Germans enjoy the right of change of domicile within the whole Reich. Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood. Here again the right to personal liberty has been dealt with separately in article 114. A suggestion was made in course of our discussions that the expression throughout the territory of India occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaranteed by the Constitution. The suggestion does not seem to me to be proper. No State can guarantee to its citizens the. free right to do anything outside its own territory.This is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of free movements and in fact, personal liberty according to him, connotes nothing else but unrestricted right of locomotion. The learned counsel refers in this connection to certain passages in Blackstone s Commentaries on the Laws of England, where the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property. Personal security , according to Blackstone, consists in a person s legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas personal liberty consists in the power of locomotion, of changing of situation or moving one s person to whatsoever place one s own inclination may direct without imprisonment or restraint unless by due course of law (1). It will be seen that Blackstone uses the expression personal liberty in a somewhat narrow and restricted sense. A much wider and larger connotation is given to it by later writers on constitutional documents, particularly in America. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual; and personal liberty in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free use of one s own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression personal liberty has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise. Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained. It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty. The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty. On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may not be affected if the owner is imprisoned or detained. Anyway, the point is not of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Act conforms to the requirements of article 22, no further question of its validity under article 21 of the Constitution at all arises. The latter aspect of his arguments, I will deal with later on. So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to procedure only and not to substantive law the procedure, however, must be one which is established by law. The expression law in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitution or otherwise possessing a binding authority. It refers to law in the abstract or general sense--in the sense of jus and not lex--and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised countries. It is argued that if the word law is interpret ed in the sense of any State-made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government. It wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but by the lawful judgment of his peers and by the law of the land. Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed. III, Chap. 3) known as Statute of Westminster of the liberties of London , that the expression due process of law for the first time appears. Neither of these phrases was explained or defined in any of the -documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1). These concepts came into America as part of the rights of Englishmen claimed by the colonists. The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase due process of law came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of general law are nobody has ever attempted to enumerate. To a large extent they are the principles of English common law and modes of judicial proceedings obtaining in England, the traditions of which came along with the settlers in America. Some Judges seem to have alluded to the principles of natural justice in explaining what is meant by general law or law of the land, though the doctrine of a law of nature did not obtain a firm footing at any time. In Wynehamer v. New York (2), Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside of the Constitution. Coke s dictum of a supreme fundamental law which obviously referred to principles of English common law certainly did exercise considerable influence upon the minds of the American Judges (3) and there are observations in some cases (1) Darmouth College case, 4 Wheaton p. 518. (2) 13 N.Y. 379. (3) Willis on Constitutional Law, p. 647. which go to suggest that the principles of natural justice were regarded as identical with those of common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and by which the powers of eminent domain and taxation were exercised. During this period it was not considered to have any bearing on substantial law at all. Change, however, came in and the period that followed witnessed a growing recognition of the doctrine that substantive rights of life, liberty and property are protected by the requirement of due process of law against any deprivation attempted at by legislative authority; and the political and economic conditions of the country accounted to a great extent for this change in judicial outlook. The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class. New and important problems arose which the States attempted to deal with by various laws and regulations. Some of them seem to have been ill-advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights. The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic safety, health, morals and convenience. Under this authority, a Government may make regulations concerning the safety of building, the regulation of traffic, the reporting of incurable diseases, the inspection of markets, the sanitation of factories, the hours of work for women (1) Vide Kelley and Harbinson on the American Constitution, p. 539. 198 u.s. 45. Vide Willoughby on the Constitution of the U.S., Vol. III, p. 271. and children, the sale of intoxicants and such other matters ,,(1). Here again, the extent to which the Court can interfere with exercise of police powers by the State has not been clearly defined by judicial pronouncements. The doctrine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional, yet if the regulation has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose, the wisdom or policy of the legislation should not be examined by the Courts. The rule is not without its exceptions but it is not necessary to elaborate them for our present purpose( 2). The later decisions, though not quite uniform, reveal the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ape to the provisions, on an analogous subject in the Indian Constitution. In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution. The article was worded as follows: No person shall be deprived of his life or liberty without due process of law. The Drafting Committee in their report recommended a change in the language of this article. The first suggestion was that the word personal shall be inserted before the word liberty and the second was that the expression in accordance with procedure established by law shall be substituted for due process of law, the reason given being that the former expression was more specific. The learned Attorney-General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the (1) Swisher--The Growth of Constitutional Power in the United States, pp. 123-25. speeches of several members of the Assembly who played an important part in the shaping of the Constitution. As an aid to discover the meaning of the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 merely. 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 introduce 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority 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-language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japanese 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 certainly meant the law of the State. Possibly the strongest argument in support of Mr. Nambiar s contention is that if law is taken to mean State-made law, then article 21 would not be a restriction on legislation 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 concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 down is not in conformity with the rules of natural justice, does not fall for consideration. It is enough, in my opinion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which detention 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 Constitution 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 arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory 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 provisions 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 decision on the point and pass a proper judgment. Though the right to move this 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires. Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Constitution, for it makes satisfaction of the particular authorities final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order. This contention cannot succeed as no infraction of any fundamental right is involved in it. As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention. The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires. The result, therefore, is that, in my opinion, the Preventive Detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive and the Congress. In India the position of the Judiciary is somewhere in between the Courts in England and the United States. While in the main leaving our Parliament and the State Legislatures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter. The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitutional, for the Court is bound by its oath to uphold the Constitution. But outside the limitations imposed on the legislative powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature. Our Constitution, unlike the English Constitution, recognises the Court s supremacy over the legislative authority, but such supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preventive detention laws even in peacetime. To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves. This is another basic fact which the Court must not overlook. The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute. In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a particular law, over-. stepped its legislative field and encroached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures. Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased. Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub-Divisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definitely made subject to the provisions of this Constitution. Turning to the Constitution, article 13 (2) provides as follows: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. This clearly puts a definite limitation on the wide legislative powers given by article 246. It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation. In this respect again the Court has supremacy over the Legislature. From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely,-- (i) that the law must be within the legislative competence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro-visions of the Constitution and must not take away or abridge the rights conferred by Part III. There can be no question--and, indeed, the learned Attorney-General does not contend otherwise--that both these matters are justiciable and it is open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Personal liberties may be compendiously summed up as the right to do as one pleases within the law. I say within the law because liberty is not unbridled licence. It is what Edmund Burke called regulated freedom. Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws: In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power. To the same effect are the following observations of Webster in his Works Vol. II, p. 393: Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (articles 25 to 28), Cultural and Educational Rights (articles 29 and 30), Right to Property (article 31), Right to Constitutional Remedies (articles 32 to 35). Under the heading Right to Freedom are grouped four articles, 19 to 22. Article 19 (1) is in the following terms :-- (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights attached to the person (jus personarum). The remaining item, namely, (f) is the right to property (jus rerum). If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legislatures fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion does not guarantee to any person, citizen or noncitizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause (1) of article 19. It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guarantee and protect it. On a parity of reasoning no Constitution or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation. Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one s life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate-days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21. The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right. So does article 31 of the Japanese Constitution of 1946. There is no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord liberty only was used as in the American Constitution but the Drafting Committee added the word personal to make it clear that what was being protected by what is now article 21 was not what had already been protected by what is now article 19. If it were permissible to refer to the Drafting Committee s report, it would be another answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19. I do not, however, desire to base my judgment on the Drafting Committee s report and I express no opinion as to its admissibility. Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words personal liberty which have a definite connotation in law as I have explained. It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum). The expressions freedom of life or personal liberty are not to be found in article 19 and it is straining the language of article 19 to squeeze in personal liberty into that article. In any case the right to life cannot be read into article 19. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s classification consisted only in the right of free locomotion. There is no reason to suppose that in article 21 of our Constitution the expression personal liberty has been used in the restricted sense in which Blackstone used it in his Commentaries. If personal liberty in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of article 21 but none of the other rights in the other sub-clauses of article 19 (1) has any procedural protection at all. According to learned counsel for the petitioner the procedure required by article 21 consists of notice and a right of hearing before an impartial tribunal. Therefore, according to him, a man s right of movement cannot be taken away without giving him notice and a fair trial before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all. The proposition has only to be stated to be rejected. In my judgment, article 19 protects some of the important attributes of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Constitution, for that would have gone without saying. The words throughout the territory of India are not used in connection with most of the other sub-clauses of clause (1) of article 19. Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to. its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not. Therefore, it was not necessary to use those words in sub-clause (d) to indicate that free movement in foreign countries was not being guaranteed. It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India. Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not. Dropping this line of argument and adopting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas. It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas, although they are left quite free to move about elsewhere. This restraint may well be necessary for the protection of the members of the, Scheduled Tribes who are generally impecunious and constitute a backward class. They may need protection against moneylenders or others who may be out to exploit them. They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes. Likewise, the free movement of citizens may have to be restricted in the interest of the general public. A person suffering from an infectious disease may be prevent from moving about and spreading the disease. and regulations for his segregation in the nature of quarantine may have to be introduced. Likewise, healthy people may be prevented, in the interests of the general public, from entering a plague-infected area. There may be protected places, e.g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words. To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a). -There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause (2) of article 19. Likewise a detention on lawful conviction impairs each of the other personal rights mentioned in sub-clauses (b) to (e) and (g) far beyond the limits of clauses (8) to (6). The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in subclauses (b) to (e) and (g) is a law imposing r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity lasts. It further follows that if a citizen s freedom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, that citizen, for precisely the same reason, cannot exercise any of the rights attached to his person including those enumerated in sub-clauses (a) to (e) and (g) of article 19 (1). In my judgment a lawful detention, whether punitive or preventive, does not offend against the protection conferred by article 19 (1) (a) to (e) and (g), for those rights must necessarily cease when the freedom of the person is lawfully taken away. In short, those rights end where the lawful detention begins. So construed, article 19 and article 21 may, therefore, easily go together and there is, in reality, no conflict between them. It follows, therefore, that the validity or otherwise of preventive detention does not depend on, and is not dealt with by, article 19. To summarise, the freedom of the person is not the result of article 19. Article 19 only deals with certain particular rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson protection of life and personal liberty. As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution. The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right. The right to life and personal liberty protected by article 21 is not an absolute right but is a qualified right--a right circumscribed by the possibility or risk of being lost according to procedure established by law. Liability to deprivation according to procedure established by law is in the nature of words of limitation. The article delimits the right by a reference to its liability to deprivation according to procedure established by law and by this very definition throws a corresponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty. What that procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duces no novelty or innovation, for at the date of the Constitution the law of procedure in this country. both civil and criminal, was mainly if not wholly, the creature of statute. The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure. Therefore, procedure established by law is quite compatible with procedure enacted by law. If, however, the word established is taken to mean sanctioned or settled or made firm then the question will arise as to the meaning of the word law in that context. Reference is made to Salmond s Jurisprudence, 10th Edition, p. 37, showing that the term law is used in two senses and it is suggested that the word law in the expression established by law means law in its abstract sense of the principles of natural justice. It is jus and not lex, says learned counsel for the petitioner. It is pointed out that both the English and the Indian law in many cases, some of which have been cited before us, have recognised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution. I find it dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he American Constitution the belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them. The interference of the colonial governors with legislation and the judiciary was also real. This sad experience coupled with the political philosophy of the time induced the framers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature. (See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.). Says Judge Cooley in his Constitutional Limitations, 6th Edition, Vol. II, Chapter XI, p. 755: The people of the American States, holding the sovereignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and reenact this guarantee, and thereby adopt it as a principle of constitutional protection. There can be little doubt that the people of the different States in America inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the use of due process as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure. In the guise of interpreting due process of law the American Courts went much further than even Lord Coke ever thought of doing. The American Courts gradually arrogated to themselves the power to revise all legislations. In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life, liberty or property. In course of time, due process of law came to be applied to personal liberty, to social control, to procedure to jurisdiction and to substantive law: (Willis, p. 642). In the words of Munro due process of law became a sort of palladium covering all manner of individual rights. A_II the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable: (Willis, p. 657). In Holden v. Hardy (169 U.S. 366 at p. 389) we find the following observations: This Court has never attempted to define with precision the words due process of law ..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owhere exhaustively defined. In Chicago B. Q. Ry. v. Drainage Commissioner (204 u.s. 561,592) ,, police power has been stated to embrace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. Reference in this connection may be made to Cooley s Constitutional Limitations, 8th Edition, Vol. II, p. 1223 and to Chapter XXVI of Willis at p. 727. The nett result is that the all-inclusive and indefinable doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former. Who knows when the pendulum will swing again. Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases. In Westervelt v. Gregg (12 N.Y. 202.) Edwards J. defined it thus: Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed. The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution. That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature. Such a doctrine can have no application to a field where the legislature is supreme. That is why the doctrine of due process of law is quite different in England where Parliament is supreme. This difference is pointedly described by Mathews J. in Joseph Hurtado v. People of California ((1883) 110 U.S. 516.) at p. 531: The concessions of Magna Charta were wrung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of due process of law and substituted the words except in due process of law that were in the original draft by the more specific expression except in accordance with procedure established by law. To try to bring in the American doctrine, in spite of this fact, will be to stultify the intention of the Constitution as expressed in article 21. In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court. Again, even the all-pervading little word due does not find a place in article 21 so as to qualify the procedure. It speaks of procedure and not due procedure and, therefore, the intellectual yardstick of the Court is definitely ruled out. Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers. It is impossible to read the last mentioned doctrine into article 21. It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate purpose of article 21 is not to prescribe any particular procedure. It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty. Under article 246 read with Entry 1 of the Concurrent List, Parliament or any State Legislature could add more offences and create further means for taking away personal liberty. But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure. Again, at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws. Those laws, however, provided a procedure of a sort which had to be followed. Therefore, before the Constitution came into force, personal liberty could be taken away only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention. Power, however, has been giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of article 22. Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21. Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves, any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21, for the very right conferred by that article is circumscribed by this possibility or risk and, therefore, such law cannot be regarded as violating the provisions of article 13 (2). Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States. Subject to the limitations I have mentioned which are certainly justiciable, our Constitution has accepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental Bights and Duties provides as follows: The liberty of the person shall be inviolable. No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law. The word law clearly cannot, in the context,mcan principles of natural justice- Again, article 75 of that Constitution protects the freedom of movement within the Free City and the right to stay and to settle at any place, to acquire real property and to earn a living. It concludes by saying that this right shall not be curtailed without legal sanctions. Legal sanctions, in this context, can only mean sanctions of the City laws. Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution. Take the Japanese Constitution of 1946 from which our article 21 is reputed to have been taken. Article XXXI of that Constitution says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law. Surely the words except according to procedure established by law in their application to the imposition of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express no opinion on the question of the admissibility or otherwise of the debates. I now pass on to article 22. The contention of learned counsel for the petitioner is that article 21 by reason of the last few words, according to procedure established by law attracts the four requirements of the American procedural due process of law as summarised by Willis to which reference has been made earlier, and that those requirements, except to the extent they have been expressly abrogated or modified by article 22, must be strictly followed before a person may be deprived of his life or personal liberties. I have already stated for reasons set forth above, that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article. This being the conclusion I have arrived at, the major premise assumed by learned counsel for the petitioner is missing and this line of argument does not begin and cannot be accepted. The learned Attorney-General, on the other hand. has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive rights which the procedural provisions of article 22 may protect ? What is the use of procedural protection if there is no substantive right ? In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural protection. Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested. They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magistrate. These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis. Some of these salutary protections are also to be found in our Code of Criminal Procedure. If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22 ? Why this u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure of detention for a period longer than three months by providing for an advisory board. Then comes clause (5). It lays down the procedure that has to be followed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earliest opportunity of making a representation against the order. The first requirement takes the place of notice and the second that of a defence or hearing. These are the only compulsory procedural requirements laid down by our Constitution. There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so. If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention. Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te or Sub-Divisional Officer or the Commissioner of Police. The representation of the detenu goes to the Government. Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials ? Clause (5) does not imperatively provide for any oral representation which a hearing will entail. Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence. The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution. In my judgment as regards preventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 (4) to (7). There is no limitation as regards the substantive law. Therefore, a preventive detention law which provides some procedure and complies with the requirements of article 22 (4) to (7) must be held to be a good law, however odious it may appear to the Court to be. Learned counsel for the petitioner conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both 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. I am unable to construe clause (7) (a) in the way suggested by learned counsel for the petitioner. It is an enabling provision empowering Parliament to prescribe two things. Parliament may prescribe either or both. H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that tim child, if he chooses to play at all, must play both table tennis and badminton. It is an option given to the child. Likewise, the Constitution gives to Parliament the power of prescribing two things. Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both. Clause 7 (a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parliament may prescribe the class or classes of cases in which a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose. Our preference for an advisory board should not blind us to this aspect of the matter. It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with. It is also urged that they had in mind that the more dangerous types of detenus should be denied the privilege of the advisory board. I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable. But that is crying for the ideal. The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution-makers, who, by the way, are the very persons who made this law. It is not for the Court to improve upon or add to the Constitution. If the law duly made by Parliament is repugnant to good sense, public o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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