TMI Blog1951 (1) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... f sabotage on railway and railway property in Greater Bombay. The respondent filed a habeas corpus petition on the 31st of July, 1950, in which, after reciting his previous arrest and release, in paragraphs 6 and 7 he mentioned as follows :-- (6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi. (7) On 20th April, 1950, he returned to Bombay and was immediately arrested as stated above. He contended that the sole aim of the Government in ordering his detention was not the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All-India Trade Union Congress. He contended that the ground is delightfully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it. He further urged that the ground gave no particulars and therefore was not a ground as required to be furnished under the Preventive Detention Act, 1950. He stated that the present appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant s detention in any event was illegal and mala fide. When this petition was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific denial that the respondent, after his release in November, 1949, and till 20th April, 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay. When the matter came up before a Bench of the High Court the respondent s petition was granted. In the judgment of the Court, Chagla C.J. observed: It is clear by reason of the view we have taken in several cases under section 491 of the Criminal Procedure Code, that this is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitution. After noticing the affidavit of the Commisioner of Police, it was further observed: We appreciate the fact that, after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was not any ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant s detention. We have looked at this affidavit and we have also looked at the particulars furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed the detention, even if valid an initio, ceases to be in accordance with procedure established by law and infringes the fundamental right of the detenue guaranteed under articles 21 and 22 (s) of the Constitution. In that way the subject of preventive detention has been brought into the chapter on Fundamental Rights. In the 3resent case we are concerned only with clauses (5) and (6) of article 22 which run as follows:- 22. (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 ground 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. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to determine if it would have came to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government. An order having been so permitted to be made, the next step to be considered is, has the detained pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplement the grounds, once they have furnished the same. In our opinion much of the controversy is based on a somewhat loose appreciation of the meaning of the words used in the discussion. We think that the position will be clarified if it is appreciated in the first instance what are the rights given by article 22 (5). The first part of article 22, clause (5), gives a right to the detained person to be furnished with the grounds on which the order has been made and that has to be done as soon as may be. The second right given to such persons is of being afforded the earliest opportunity of making a representation against the order. It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall, These conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is not altogether excluded., One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenue there can be no addition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of article 22 (5), as those grounds for the order of detention were not conveyed to the detained person as soon as may be. This however does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished, is not excluded. However, the second communication should not be liable to be charged as not being within the measure as soon as may be . Secondly, it must not create a new ground on which satisfaction of the Government could be suggested to have been arrived at. In our opinion, if these two conditions are fulfilled, the objection against a later communication of details or facts is not sufficient to cause an infringement of the provision made in article 22(5). The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenue to make a representation, i.e., to give him an opportunity to put forth his objections against the order of detention. Moreover, the earliest opportunity has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are rounded could and should equally be conveyed to the detained person to enable him to make out his objections against the order. To put ,it in other words, the detaining authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the court. On the other hand, the question whether the vagueness or indefinite nature of the statements furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the court s inquiry and subject to the court s decision. The analogy sought to be drawn between a ground which can have no connection whatsoever with the order and a ground which on its face has connection with the order but is not definite in its statement, is clearly faulty. The extreme position, on the other hand, that there is no connection between the ground to be furnished and the representation to be made by the detained person under article 22 (5) is equally unsound, when the object in furnishing the ground is kept in mind. The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act as generally suggested. In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f article 22. That clause, as noticed above, requires two things to be done for the person against whom the order is made. By reason of the fact that clause (5)forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid. While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation, which obligations, as shown above, are correlated, there exists no express provision contemplating a second communication from the detaining authority to the person detained. This is because in several cases a second communication may not be necessary at all. The only thing which emerges from the discussion is that while the authorities must discharge the duty in furnishing grounds for the order detention as soon as may be and also provide the earliest opportunity to the detained person to make the representation , the number of communications from the detaining authority to the detenue may be one or more and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from this rule is a deviation from the intention underlying article 22 (5) of the Constitution. The result of this attitude of some detaining authorities has been that, applying the tests mentioned above, several communications to the detained persons have been found wanting and the orders of detention are pronounced to be invalid. Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is correct. We have already pointed out that the summary rejection by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenue when the grounds are first communicated, is not sound. We have indicated the circumstances and conditions under which the later communication may or may not be considered as falling within the purview of article 22 (5) of the Constitution. In dealing with the position when the grounds were first communicated, the High Court held as follows: This is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitution. In this case the later communication of the 26th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 88. to disclose facts which such authority considers to be against the public interest to disclose. If this procedure is not complied with, detention under the Act may well be held to be unlawful, as it would then be deprivation of personal liberty which is not in accordance with the procedure established by law. The question accordingly arises as to what are the requirements of article 22 (5) and whether they have been complied with in the present case ? On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be detained, namely, that (1) the grounds of his detention should be communicated to him as soon as may be, and (2) he should be given the earliest opportunity of making a representation against the order. As there is to be no trial in such cases, the right of making a representation affords, it is said, the only opportunity to the person detained to repell the accusation brought against him and establish his innocence. It is the communication of the grounds of detention that is expected to give him notice of what he is to meet by making a representation. The grounds must, therefore, it is submitted, give sufficient in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rationally probative value -Machindar Shivaji Mahar v. The King (2). These decisions clearly establish, what indeed is plain from the nature of the measure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, no recourse being permitted to a court of law by way of review or justification of such action except on allegations of mala fides or irrational conduct. (1) [1917] A.C. 260, 269. (2) [1949-50] When the power to issue a detention order has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its satisfaction , which is a purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person detained to make a representation, for, be it noted, the grounds to be communicated to the person detained are the grounds on which the order has been made. Indeed, the logical result of the argument advanced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h he may wish to make on the basis of what is communicated to him. If such communication is made and such opportunity is given the detaining authority will have complied with the procedure prescribed by the Constitution, and the person under detention cannot complain that he has been deprived of his personal liberty otherwise than in accordance with the procedure established by law. I can find nothing in article 22, clause (5), to warrant the view that the grounds on which the order of detention has been made must be such that, when communicated to the person detained they are found by a court of law to be sufficient to enable him to make what the court considers to be an adequate representation. The right to be produced before a Magistrate and to consult and be defended by a legal practitioner is expressly denied by the Constitution itself to a person under preventive detention [vide article 22 (1), (2) and (3)3 and this. Court held in Gopalan s case(2) that there was nothing in the Constitution to entitle him to a hearing even before the detaining authority. All this underlines the executive character of the function exercised by (1) [1917] A.C. 260, 275. (2) [1950] S.C.R. 88, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not ad rem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain to those responsible in advising His Majesty in regard to the Order in Council, and it constitutes, in my opinion, a very cogent reason for thinking that the words under discussion cannot be read as meaning that the existence of reasonable cause is one which may be discussed in a court which has not the power of eliciting the facts which in the opinion of the Secretary of State amount to reasonable cause . There was considerable discussion as to the meaning of the words grounds and representation used in clause (5). These are words of very wide connot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same clause of the right to be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds communicated are to form the basis of the representation and, indeed, are intended mainly, if not solely, for that purpose. To suggest that, apart from those grounds, and right of making a representation imports, by necessary implication, a further obligation to give such details and particulars as would render that right effective is, in my opinion, not to construe the clause in its natural meaning but to stretch it by the process of implication, so as to square, with one s preconceived notions of justice and fairplay. No support for this construction can be derived from the provision of distinct time limits for the communication of the grounds and the affording of opportunity for representation. as that can be explained by the different degrees of urgency required in the two cases. The grounds are to be communicated as soon as may be which means as soon as possible and imports a much higher degree of urgency than what is implied in affording the earliest opportunity which, I take it, means affording writing and communica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision as a precedent. In the course of the debate it was repeatedly urged that this court should be jealous in upholding the liberty of the subject which the Constitution has guaranteed as a fundamental right and must not adopt a construction of article 22 (5) which would rob the safeguards provided therein of all their efficacy. I am profoundly conscious of the sanctity which the Constitution attaches to personal liberty and other fundamental rights and of the duty of this court to guard against inroads on them by the legislature or the executive. But when, as has been stated, the Constitution itself has authorised preventive detention and denied to the subject the right of trial before a court of law and of consulting or being defended by a legal practitioner of his choice, providing only certain procedural safeguards, the court could do no more than construe the words used in that behalf in their natural sense consistently with the nature, purpose and scheme of the measure thus authorised, to ascertain what (1) Not reported. powers are still left to the court in the matter. It is in this light that I have endeavoured to construe clause (5) and, for the reasons ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssarily be more precise and fuller in particulars than the grounds on which an order may be made by the authority who is a person of the second mentioned type. The grounds on which the authority who is a person of the first mentioned type makes an order of detention create no difficulty, for such grounds are quite precise and ample, and, when communicated to the detenu, will clearly enable him to appreciate the reasons for his detention and to make his representation. We are, however, concerned with the grounds on which an order of detention may be made by the authority who is a person of the second mentioned type who may derive the requisite satisfaction from the conclusions which he may draw from the available information, which may not be precise or ample but on which, having regard to his source of information, the authority may honestly feel safe to rely and to act. This last mentioned type of grounds will, in the following discussion, be referred to as vague grounds . The question for our decision is whether an order of detention made in good faith on such vague grounds is valid when it is made and whether if valid when made, becomes invalid because these very groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be read in the light of article 22 (5) as construed above. So read, the satisfaction of the authority referred to in section a of the Act cannot be the subjective satisfaction of the authority, for the satisfaction must be founded on grounds which, when communicated later on, will enable the detenu to make a representation which postulates an objective test. This involves that section 3 (1) (a) of the Act should be read as if the words on grounds which, when communicated to him, will enable him to make a representation such as is mentioned in section 7 of this Act occurred after the words if satisfied with respect to any person and before the words that with a view . If such interpolation of words be not permissible according to accepted canons of construction, then it must be held that in so far as section 3 of the Act makes an order of detention dependent on the subjective satisfaction of the authority, the section is unconstitutional, being repugnant to the provisions of article 22 (5) and the necessary intendment thereof. The argument so formulated is attractive but on closer scrutiny will be found to be unsound. Before the Constitution came into force there were laws fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconstitutional clearly destroys the cogency of the argument formulated as hereinbefore stated. The decision in Gopalan s case(1) as to the validity of section 3 of the Act makes it impossible to accept this argument. It is next urged that even if the initial order was not invalid when made because satisfaction was a purely subjective matter for the authority alone and the court cannot consider or pronounce upon the sufficiency of the grounds on which the satisfaction was based, nevertheless, the continuance of the detention becomes unlawful if the same grounds when communicated, be found to be vague and devoid of particulars so as to render the making of a representation by the detenu somewhat difficult. The argument is that although the vagueness of the grounds is not (1) [1950] S. C. R. 88. justiciable at the initial stage when the order is made and so the order cannot be said to be invalid ab initio, the same vagueness of the ground is nevertheless justiciable at the later stage when they are. communihttp:// cated, so that if vagueness renders the making of a representation difficult the continuance of the detention at once becomes illegal. Under article 21 no person ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication of the grounds will necessarily enable him, first, to see whether the grounds are at all relevant to the object sought to be secured by the Act. If they are not, then they were no grounds at all and no satisfaction could be founded on them. The very irrelevancy of the grounds will be a cogent proof of bad faith on the part of the authority so as to make the order itself invalid. In the next place, the disclosure of the grounds will tell the detenu in which class his suspected activities have been placed and whether he is entitled to the benefit of having his case scrutinised by the Advisory Board. Finally, the communication of the grounds on which the order has been made will tell him generally the reasons for his detention, and will, therefore, be helpful to the detained person in making his representation which is also provided for in the tatter part of clause (5). The fact that there is correlation between the two parts of clause (5) does not, however, carry us any further. There is no warrant for assuming that the grounds to be communicated to the detenu are to be a formal indictment or a formal pleading setting forth a charge or a case with meticulous particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the express requirement. If the order had been made on vague grounds but (1) [1950] S.C. R. 88. the authority is to communicate precise and well-formulated grounds which will be sufficient for the detenu to make a representation, then the communication will not be of grounds on which the order was made but of something more than what is expressly required. The express provision must exclude such an inconsistent implied provision. Again, clause (6)of article 22 gives the authority the right to claim privilege against disclosure of facts in public interest. Non-disclosure of facts will necessarily make the grounds, as communicated, extremely vague and devoid of particulars. If the construction of clause (5) which is contended for by the detenu s counsel were correct, then the vagueness of the grounds resulting from the non-disclosure of facts under clause will entitle the detenu to be released, for that vagueness also will render the making of a representation impossible or difficult. That will mean that the claim of privilege given to the authority by clause (6) of article 22 is wholly meaningless and ineffective, and will defeat its very purpose, for the privilege cannot be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (5), for without such particulars the detenu is not afforded the opportunity to make a representation. I am unable to accept this line of argument. Under the first part of clause (5) the grounds on which the order has been made have to be supplied as soon as may be. The measure of time indicated by the words as soon as may be must obviously run from the date of detention. Likewise, the latter part of clause (5) requires affording the detenu the earliest opportunity to make a representation. From what terminus a quo is the period indicated by the phrase earliest opportunity to begin to run ? If that is also to run from the date of the detention, then the two periods under the two parts of clause (5), must necessarily coincide and, therefore, the question of supplying further particulars after the grounds are supplied cannot arise. On the other hand, the natural meaning of the words of the latter part of clause (5), to my mind, is that the period connoted by the phrase the earliest opportunity begins to run from the time the detenu expresses his desire or intention to make a representation. The making of a representation is the right of the detenu. To make or not to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst part or under the second part of clause (5). This does not, however, mean that the authority may not supply particulars either suo motu or on the application of the detenu. All that I say is that clause (5) imposes no constitutional obligation on the authority to supply particulars so as to remove the vagueness of the grounds or to enable the detenu to make a representation, and non-supply of further particulars does not constitute an infraction of any fundamental right. It is said that clause (5) of article 22 construed in the way suggested above, would render that clause nugatory for it will then really guarantee no fundamental right at all. I respectfully differ from this view for the criticism does not appear to me to be well founded. Communication of the grounds, even if vague, will none the less be helpful to the detenu in the several ways I have already mentioned and, therefore, the right to have the grounds on which the order has been made communicated to him is a valuable right which has been recognised as a fundamental right. Likewise, the right to make a representation is a valuable right which is guaranteed by the Constitution. These rights remain unaffected. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
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