TMI Blog1951 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... y lyer, with him) for the Union of India, Intervener. PATANJALI SASTRI J.-- The common question which arises for consideration in these petitions is whether certain provisions of the Preventive Detention (Amendment) Act, 1951, purporting to amend the Preventive Detention Act, 1950, so as to authorise detention of , the petitioners to be continued beyond the expiry of one year are ultra vires and inoperative. The amending Act hereinafter referred to as the new Act) came into force on 22nd February, 1951, and by substituting the figures 1952 for 1951 in subsection (3) of section 1 of the Preventive Detention Act, 1950, (hereinafter referred to as the old Act) it continues the operation of the old Act till 31st March, 1952. The petitioners in all these cases were, at the commencement of the new Act, under detention in pursuance of orders made under section 3 (1) (a) (ii) of the old Act and, save in a few cases where the detention was also attacked on some special grounds which have no substance, the legality of that detention was not open to question. But such detention having commenced more than a year before the date of hearing of these petitions the petitioners woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order made under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1)of section 3, the date of commencement of the said Act; and (b) in every other case the date of detention under the order . By section 10 the Advisory Board is required to submit its report within ten weeks from the date specified in sub-section (2) of section 9. Section 11 (1) authorises the appropriate Government to continue the period of detention for such period as it thinks fit in case the Advisory Board reports that there are sufficient grounds for the detention, while sub-section (2) provides that the Government shall revoke the detention order and release the person concerned if the Advisory Board reports the other way. Sub-section (1) of section 12 declares for the avoidance of doubt that every detention order in force at the commencement of the new Act shall continue in force and shall have effect as if it had been made under this Act as amended by the new Act, and sub-section (2) provides that nothing contained in subsection (3) of section 1 or in sub- section (1) of section 12 of the old Act shall affect the validity or duration of any such order. It will be seen that alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different mode of proceeding by providing for the continuance of detention orders in force at the commencement of the new Act on the basis that they should have effect as if they had been made under the new Act. The resulting position must, therefore, be dealt with only on that basis and not on any other hypothetical footing. The Attorney-General, however, contended in the alternative that the constitutional validity of section 9 (2) (a) and section 12 (1) of the new Act could be sustained under article 22 (4) (b) which has been held by a majority of the Judges in A.K. Gopalan v. The State of Madras [1950] S.C.R. 88, to be a distinct and independent provision authorising preventive detention for a period longer than three months in accordance with a law made by Parliament under sub-clauses (a) and (b)of clause (7) of article 22. The Attorney-General claimed that the aforesaid provisions were such a law, none the less because Parliament may have intended to make a law within article 22 (4) (a) by providing for a review by an Advisory Board in all cases of preventive detention. On a question of vires, the intention of the Legislature is immaterial, and I agree that a provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in substance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that section 9(2)(a) and section 12(1) of the new Act substantially satisfy the requirements of sub clause (b) of clause (4) of article 22, and cannot be declared unconstitutional and void. The objection to the validity of section 11(1) can be disposed of in a few words. The argument is that the discretionary power given to the appropriate Government under that sub-section to continue the detention for such period as it thinks fit authorises preventive detention for an indefinite period, which is contrary to the provisions of article 22(4). But, if, as already observed, the new Act is to be in force only up to I st April, 1952, and no detention under the Act can continue thereafter, the discretionary power could be exercised only subject to that over-all limit. The objection therefore fails. In the result the petitions are dismissed. MAHAJAN J.--The question to be decided in these petitions is whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion laws in the matter of duration of the period of detention and provides that no law of preventive detention can authorise the detention of a person for a longer period than three months without the intervention of an advisory board and without obtaining its opinion within three months. The amending Act, 1951, by section 9 authorizes detention for a period longer than three months without the opinion of the advisory board having been obtained within the said period of three months from the date of the actual detention in respect of persons detained under Act IV of 1950 as it originally stood and it thus infringes the fundamental right conferred by article 22(4). (2) That Parliament in exercise of powers conferred on it under article 22(7) having prescribed in section 12 of Act IV of 1950 a maximum period of one year for detention in certain classes of cases without obtaining the opinion of the advisory board, that period of one year became a part of the content of the fundamental right conferred under article 22(4) of the Constitution. Sections 9 and 12 of the amended Act contravene this fundamental right inasmuch as they authorize detention of persons who were detained under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 9 and it also authorizes the advisory board to call for such information as it deems necessary from government and from the person concerned and it empowers it to give a hearing to the detenu if in any particular case it considers it essential. Section 11 makes the opinion of the advisory board binding on government. It also authorizes government to continue the detention of persons for such period as it thinks fit in cases where the opinion of the board is in favour of the continuance of detention. Section 12 provides that orders of detention in force at the commencement of the amended Act will be deemed to have been made under this Act. A new section, 14, has been introduced in Act IV of 1950 and it authorizes temporary release of persons detained. The provisions of the amended Act are thus a great improvement on the original Act inasmuch as they provide a greater opportunity to the detenus of proving their innocence than they had under the original Act. The detention of a person without the case being referred to the opinion of an advisory board constituted of independent persons has been completely done away with, except for a period of three months provided for in articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months during which the advisory board had to submit its report. The amended Act achieved this by prescribing in these specified classes of cases the date of the commencement of the amended Act as the date from which this period was to begin and by section 12 it provided that all detentions continuing at the date of the commencement of the amended Act shall be deemed to be detentions under the amended Act. After a careful consideration of the argument of Mr. Nambiar I have reached the conclusion that there is considerable force in the reply made to it by the learned Attorney-General. He contended that article 22(4) provides that no law providing for preventive detention shall authorize detention of a person for a longer period than three months and that the amended Act has not in any manner infringed this provision; on the other hand, it provides that the advisory board must make its report to the government within ten weeks. It was urged that in order to judge the vires of the amended Act it was not relevant to take into consideration detention of persons validly detained under different statute and that its vires must be adjudged on its own provisions and not with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended statute is the same law as was contained in the original one. Section 9 of the original Act has been substituted by section 9 of the amended Act and declares a new law and it is not a re-enactment of the law as was contained in the earlier statute. Section 12 of the original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by section 12 of the amended Act is in the nature of a substituted provision. It seems to me that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent statute. The petitioners are being detained today by force of the provisions contained in sections 9 and 12 of the amended Act and not under the law that was passed in 1950, as by repeal of section 12 of that Act their detention under it technically terminated. The new law admittedly standing by itself does not authorize detention of any person beyond a period of three months except in the manner provided by article 22(4) of the Constitution. No question whatever arises of tacking of the period of detenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Constitution in the manner provided therein. By clause (7) of article 22 Parliament has not been authorized to add to the fundamental rights. The contention of the learned counsel is based on an erroneous assumption that article 22 in clause (7) confers a fundamental right on a person; in its true concept it restricts to a certain degree the measure of the fundamental right contained in clause 4 (a) of the article. The argument that Parliament has no authority to alter the period of one year prescribed by it under article 22 (7) (b) of the Constitution is again founded on an erroneous assumption that the clause confers legislative power on Parliament. The ambit of the legislative powers of Parliament is contained in article 245 of the Constitution read with the entries in the Seventh Schedule. Article 22 of the Constitution restricts those powers to a certain extent. It does not enlarge them. Clause (7), however, cuts down these restrictions to a certain extent. Parliament having power to make the law has also the power to alter or amend it, if it so chooses. It is difficult to assent to the proposition of the learned counsel that if a person is detained according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect, it springs out of the words of sub-clause (7) itself and the court cannot help in the matter. Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalan's case [1950] S.C.R. 88. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law. The last point urged by Mr. Nambiar that the provisions of the amended Act contravene the provisions of article 21 of the Constitution does not impress me. The expression procedure established by law was cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 21 and 22 confer the fundamental right of personal liberty. The first is general, and as the meaning of the words procedure established by law has been thoroughly discussed in Gopalan's case [1950] S.C.R. 88., I do not intend to cover that ground. But so far as article 22 (4) is concerned, my opinion is that it confers a fundamental right not to be kept under preventive detention beyond a certain period. The extent of that period can vary but it can only be extended beyond three months within certain fixed limits and subject to specified conditions. Article 246 read with item 9 in List I and item 3 in List III of the Seventh Schedule confers jurisdiction upon the Union Parliament and the State Legislatures to make laws for preventive detention, but article 22 (4) imposes restrictions. It says that- No law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless certain conditions are fulfilled. The conditions are set out in sub-clause (a) and sub- clause (b). Under the former, a law can provide for preventive detention over three months provided (1) there is an advisory board of a certain charact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to authorise preventive detention beyond three months. If, however, either wishes to do so, then it is bound to conform to the provisions of either sub-clause (a)or sub-clause (b) of clause (4) or both; and in the case of sub-clause (a) the proviso is as much a part of the sub-clause as its main provision. If no maximum limit is fixed under clause (7) (b), then the proviso cannot operate and if it cannot operate, no legislative action can, in my opinion, be taken under clause (4) (a). If A is told by B that he may go to a bank and withdraw a sum of money not exceeding such limit as may be fixed by C, it is evident that until C fixes the limit no money can be with- drawn. C cannot be compelled to fix a limit but if he chooses not to do so, the money cannot be withdrawn. Equal- ly, if A is told that he may withdraw money not exceeding a limit which he himself may fix, there can, in my opinion, be no right of withdrawal until he fixes the limit. Look at it another way. A British General is told by the Indian Government that he may travel from India to Burma quickly and easily by plane. He is also told that he may in addition drive by car over the hills and through the jungles p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, and I agree that in interpreting these provisions equal weight must be given to all the clauses; also that no one part can be treated with greater sanctity than the rest. But if, when all that is done, doubt still remains, then the doubt must, in my judgment, be resolved in favour of the subject and not of the State. Brush aside for a moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and and or or , or may and must . Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution. What sort of State are we intended to be ? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? Is not the sanctity of the individual recognised and emphasised again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power? I have no doubts on this score. I hold it therefore to be our duty, when there is ambiguity or doubt abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not choose to act under clause (7)(b) ? To my mind, there is ambiguity and there is room for doubt. I feel that the people of India chose for themselves the free way of life and that they entrusted to Parliament, which represents their will, the duty of satisfying itself that any limitations hereafter to be placed on the freedoms conferred are necessary and essential and that these limitations will not exceed such limits as Parliament itself shall determine solemnly and deliberately, after anxious scrutiny and dutiful care. I cannot bring myself to believe that the framers of our Constitution intended that the liberties guaranteed should be illusory and meaningless or that they could be toyed with by this person or that. They did not bestow on the people of India a cold, lifeless, inert mass of malleable clay but created a living organism, breathed life into it and endowed it with purpose and vigour so that it should grow healthily and sturdily in the democratic way of life, which is the free way. In the circumstances, I prefer to decide in favour of the freedom of the subject. I am not hampered here by considerations of war necessity or emergency legislation where some autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs a 8benefit and a privilege. It takes away nothing. It gives all detenus the right to go before an Advisory Board for review of their cases. It confers this right not only on those who may be detained in the future but also on those already under detention. And further, it confers this right on those who had no such right before. This is not an infringement of any fundamental right nor does it contravene any article of the Constitution; therefore Parliament was free to legislate as it pleased regarding that. It was free artificially to alter the starting point of the order of detention which is what it has done in sub-section (2)(a). That section, in my judgment, is intra vires. So also is new section 12 which continues in force existing detentions despite the expiry of the old Act and states that the passing of the new Act shall not affect either the validity or duration of orders passed under the old Act. It will be remembered that the detentions we are considering in these cases were good under the old Act. That Act prescribed a maximum limit, namely one year, for this class of detention. In my opinion, Parliament had the right to say in this particular manner, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the State Legislatures are told that they cannot authorise preventive detention beyond three months unless Parliament does this and that, I am of opinion that the responsibility to do these things is on Parliament itself and that in this particular matter there can be no delegation of authority. The Constituent Assembly has entrusted this particular matter to the care of Parliament itself and has made this Parliament's special responsibility. The country is therefore entitled to receive the benefit of the mature judgment, wisdom and patriotism of that august body. I am not doubting Parliament's general powers of delegation. But, in my opinion, these powers are circumscribed and each case must be judged upon its own circumstances. As this matter is under consideration in another case and as mine is a dissenting voice here, all I need say in this case is that in my judgment this is not one of the matters which can be delegated. It was said that all this is irrelevant because a maxi- mum limit has in fact been fixed in the present instance. It was argued that the life of this Act has only been fixed for one year and that the life of the old Act was also only one yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinue in being despite the expiry. See Craies on Statute Law, page 348, and 31 Halsbury's Laws of England (Hailsham Edition), page 5 13. I take this to mean that if a man is tried for an offence created by a temporary Act and is found guilty and sentenced to, say, five years' imprisonment, he would have to serve his term even if the Act were to expire the next day. In my opinion, the position is the same in the case of detentions. A man, who is arrested under a temporary detention Act and-validly ordered to be detained for a particular period, would not be entitled to claim release before his time just because the Act expired earlier. Then again. The Act' we are considering has special provision to the contrary. Section 11 (1) empowers either a State or the Union Government to order the detention of a person for such period as it thinks fit . If this provision is not ultra vires, then the Act in express terms permits the appropriate Government to order a detention which shall endure beyond the life of the Act itself, and unless the fundamental provisions of the Constitution can be called in aid, there is nothing to prevent Parliament from enacting such a law. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Parliament could not touch save by amendment of the Constitution was intended to be conferred. But if section 11 (1) is upheld, what is there left which is beyond the reach of Parliament? Parliament has here in effect said that there need be no general limit to the duration of detentions and that lesser authorities can fix the duration in each indi- vidual ease and are free to detain for as long as they please. If that is so, then what is there left of anything fundamental regarding the maximum length of detention ? To my mind, the whole object of the elaborate provisions in clauses (4) and (7) is to place restraints on powers regarding the length of indefinite and arbitrary detentions which would otherwise be absolute. For these reasons, I am of opinion that section 11(1) is ultra vires. My only hesitation has been on the score of Gopalan's case [1950] S.C.R. 88. I have searched long and anxiously to see whether this question is concluded there and whether my hands are tied. After considerable study of the decision, I have reached the conclusion that I am not bound. There were six Judges there. The present Act, the amending Act of 1951, was not under consideration, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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