TMI Blog1951 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, Delhi, hereby order the detention of under sub-section (2) of section 3 (1) (a) (ii) of the Preventive Detention Act. Given under my seal and signature . The grounds of detention communicated to the petitioners were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus: In pursuance of section 7 of the Preventive Detention Act you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you are that your speeches generally in the past and particularly on ...... August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order . The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution, but the petitions were dismissed. It appears to have been contended before the learned Judges (Khosla and Falshaw JJ.) who heard those petitions that although this Court held in A.K. Gopalan v. The State of Madras ([1950] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause (2) of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order . But it will be noticed that the Statutory provisions which were there declared void and unconstitutional authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre-censorship on the publication of a journal. No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalan's case(s), the Court is called upon to adjudge the legality of the detention of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19 (1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my opinion, such result is clearly not the outcome of the Constitution. The article has to be read without any preconceived 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 sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life. On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 (1) generally must fail. Any other construction put on the artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to enable the detained person to make a representation which, on being considered, may give relief to the detained person. While the communication of particulars should, subject to a claim of privilege under clause (6), be as full and adequate as the circumstances permit , it did not, however, follow from clause (6) that what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclosure. Referring to the use of the term vague in this connection,. it was remarked: 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 This decision does not, in our opinion, support the broad proposition contended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should communicate to the person the offending passages or at least the gist of such passages on pain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is grounded on alleged prejudicial speeches, the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate. In the case of these petitioners, no doubt, the speeches are said to have been made at public meetings, and it is not suggested on behalf of the respondents that no record was made of the speeches, so that the details asked for could have been furnished. The omission to do so, for which no reason is disclosed in these proceedings, is regrettable, as it has given rise to avoidable grievance and complaint. The authorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above: In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order. Instead of giving the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the Preventive Detention Act, 1950. The petitioners are respectively, the President, Vice-President and the Secretary of the Delhi State Hindu Mahasabha. The grounds of detention supplied to them are almost identical. Those furnished to Prof. Ram Singh read as follows :- In pursuance of section 7 of the Preventive Detention Act, you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order. You are further informed that you are entitled to make a representation against your detention to the State Government, that is, the Chief Commissioner, Delhi. The grounds supplied to the other two petitioners were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention it is not possible for the man to make the representation. Indeed, the right will be only illusory but not a real right at all. (2) That while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. For the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22(5) is established he is bound to be released b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a written representation on behalf of the detenus on the materials supplied to them, the effort could not proceed beyond a bare denial of the speeches having been made, or a bald statement that no words were used which could possibly excite disaffection between Hindus and Muslims. Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody. Without a knowledge of the offending words or passages, or their substance, it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection amongst Hindus and Muslims. The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code. Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed. In the words objected to were known, the representation on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal. I accordingly order the release of the petitioners. On the other points argued in the case I agree with judgment of Sastri J. BOSE J.--I agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view. I am of opinion that these petitioners should all be released on the ground that their detentions are illegal. I do not doubt the right of Parliament and of the executive to place restrictions upon a man's freedom. I fully agree that the fundamental rights conferred by the Constitution are not absolute. They are limited. In some cases the limitations are imposed by the Constitution itself. In others, Parliament has been given the power to impose further restrictions and in doing so to confer authority on the executive to carry its purpose into effect. But in every case it is the rights which are fundamental, not the limitations; and 'it is the duty of this Court and of all courts in the land to guard and defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it. If it were permissible to go behind file Constitution and enquire into the reason for the provisions dealing with the fundamental rights, one would find them bound up with the history of the fight for personal freedom in this land. But that is not permissible and is irrelevant. What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is cribbed, cabined and confined . I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights. I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable. But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey, namely to confer the fullest possible degree of personal liberty upon the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; their substance but what the authorities say the man said. This has to be viewed from two angles. The first is whether the reports handed in to the authorities are Correct. Even with the utmost good faith mistakes do occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B. But unless A knows that is what happened, it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation. The next point is this. When a man ,is told that his speech excited disaffection and so forth, he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him. If the premises on which the conclusion is based are faulty, the conclusion will be wrong. But even if the premises are correct, the process of reasoning may be at fault. In either event, no representation of value can be made without a reasonably adequate knowledge of the premises. Envisage for a moment the position of the Board. In the ordinary course, it would have before it a speech with the offending passages in full, or at any rate the gist of them. From the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires and I am not prepared to abate one jot or tittle of its rigours. My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case. One is Vaidya's case (1) and the other Lahiri's (2). In the latter, the point whether the gist of the speech should be given was not considered. It seemed to have been assumed that it need not. But I am unable to accept that as authority for anything beyond the fact that was not considered necessary on the facts and in the circumstances of that particular case. As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of (1) [1951] S.C.R. 167. Not reported, what is vague must vary according to the circumstances of each case. It was also said there that 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. It was further said Ordinarily, the 'grounds' in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspected of being engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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