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TMI Blog1950 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... the City & other parts of the District; that you were up to the time of your arrest wilfully & actively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through, the machinery set up by the Administration with the ulterior object of bringing about disorder in the City; that you have been secretly publishing unauthorised objectionable news sheets exhorting the public, especially the labouring classes to start an open & violent revolt to overthrow Govt." Then, the Dist. Mag. went on to say that be was fully convinced that, if left at large, the detenu was likely to act in a manner prejudicial to the security of the State & maintenance of public order in the City & District. 2. The detenu has now made an appln. to this Ct. for his being set at liberty, & the first point which has been made on his behalf is that the order in this case watt passed by one Dist. Mag., namely, Mr. Damry, at the time when the order was actually served upon the petnr. Mr. Damry had left charge & another Dist. Mag., namely, Mr. Ghatge, was the Dist. Mag. of Ahmedabad. Mr. Ghatge does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on upon that order. Say, for example, if an order is made now saying that it is necessary to detain a particular person under the order, & that order has not been cancelled & has been sent for execution to the police, with whom it remains, the Ct. would be very slow, after the lapse of a very long time, say, for example, 10 years, to say that the detention was a valid detention. But whenever it is a question of time having elapsed after the making of an order & before its service, it is after all a relative question as to whether time which lapsed is too long or it is short enough. The learned Govt. Pleader has pointed out & pointed out rightly that when an order is made under the Preventive Detention Act, the order continues to be in force until it is cancelled, & as a matter of fact even apart from any specific section of the Preventive Detention Act, if an order is lawfully made, it must remain in force until it is revoked by a proper authority. But we do not think that has gob anything to do with the question before us. We think that, inasmuch as this order of the Dist. Mag. was sent out by him for execution & it had not been revoked, it is proper to come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words which follow show that the act of the detenu was supposed to be in furtherance of the aims of an organisation, namely, the Communist Party If it was not stated that the detenu was an active member of the Communist Party, the question which would naturally arise would be, why he should act in fun heranoe of the aims of the organisation which were supposed to be furthered by his act. The first ground, therefore, is that in furtherance of the aims of the Communist Party the detenu was secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the City & other parts of the District. Now, in our view, this ground is vague. The learned Govt. Pleader, who appears on behalf of the State, Says, however, that it does not matter if the ground which was furnished to the detenu was vague, because all that the Preventive Detention Act requires the detaining authority to do is to furnish him grounds in the nature of the bare words of the section of the Act, under which action has been taken. It has got to be remembered that the Preventive Detention Act enables a person to be detained in several circumstances. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were "grounds & other particulars" showing that the grounds would have to mention some particulars. Those illustrations ought to be sufficient to show that the meaning of a word would, to some extent, be controlled by the context in which it appears, & in this case we are concerned with two enactments, one is the Constitution, & the other is the Preventive Detention Act. So far as the Preventive Detention Act is concerned, in one sense, its language is not determinative of the word "grounds," because assuming for the purpose of argument that when the Preventive Detention Act said that grounds should be given, it uses words qualifying 'ground' which would enable the detaining authority to omit certain facts, that, could not have any effect against the words of the Constitution, which makes it obligatory upon the detaining authority to mention the grounds in all cases. It is obvious that if there is a conflict between an Act of a Legislature, which is enacted by it under a particular power given to it by Constitution, & the Constitution itself, then the words of the Constitution must prevail. It in true that the Constitution uses the word "grounds,& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the one word used in describing one thing cannot be controlled by the language used in describing the other thing, the argument which is based upon Article 22(6) must prevail. 6. There is a further question which has been raised before us as to whether, as a matter of fact, even assuming that the detaining authority is obliged to disclose the conclusions of fact upon which its order is based, there is any discretion vested in it to omit any of the facts which it may consider are unnecessary. Now, as has been pointed out in Sushila Madiman's case, (52 Born. L. R. 794 : A. I. R. (38) 1951 Bom. 262) the Constitution does not enable the detaining authority to mention to the detenu only such facts as are in its opinion sufficient to enable him to make a representation. It has been argued before us that the effect of this is, as was suggested on behalf of the State, to make it necessary to the detaining authority only to mention the words of the section of the Preventive Detention Act under which action was taken. That we have already repelled. The second argument made before us is different. It is to the effect that, even though the words which enable the detaining authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time he killed A, & on another date & time he killed B. The detaining authority is entitled to come to its own conclusion as to whether the detenu killed A or B or not, & whether these are political murders of which the object was to spread disorder in the country or not ; but if the detenu is to have opportunity to make a defence, supposing the case against him was based upon an allegation that he' had sent a threatening letter to A, that subsequently A was murdered, that he was murdered with a hatchet, & that the detenu was seen at about the time & the place of the murder by some persons going about with a blood-stained hatchet in his hand, we do not think that the detenu can make a proper representation, unless he was told all the facts, namely, that he had sent a threatening letter, that subsequently when the murder was committed the detaining authority had, as a matter of fact, found that he was in the vicinity of the place with a blood-stained hatchet in his hand. We are not suggesting that the detaining authority would be entitled to take action against the detenu only on these facts but he is entitled to come to his own conclusion upon the facts as to whether a murder h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are given to the detenu give him sufficient particulars, & we find that the second & the third grounds which have been given to the detenu in this case give to him sufficient particulars of the facts upon which action has been taken against him. The second ground is to this effect; 'That you were upto the time of your arrest wilfully & natively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through the machinery set up by the Administration with the ulterior object of bringing about disorder in the City." It is contended on behalf of the detenu that, assuming that the strike which the detenu was inciting was an illegal strike, there was no reason why he should not have been told what was the strike which he was inciting & which was considered by the detaining authority to be illegal. Now, such an argument could possibly be valid where the act complained of is incitement to go on a strike & the grounds were given a sufficiently long time after the incitement, the strike not having taken place in the meantime. In this case the grounds wore given on 19-6-1950 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority to produce before the Ct. evidence upon which action is taken, & merely because the detaining authority has not produced the pamphlets, we are not prepared to say that, its satisfaction ground has been given mala fide. 10. In our view, therefore, the second & third grounds in this case disclosed to the detenu sufficient particulars upon which action was taken against him to enable him to make a representation to the State. 11. It is said, however, that the grounds are bad for other reasons, & the first reason made is that the second ground in this case mentions that the detenu was inciting illegal strikes. It is contended on behalf of the detenu that under Section 78, Bombay Industrial Relations Act, 1946, a Labour Ct. has been given power to decide whether a strike, lock-out, closure or stoppage is illegal under the Act. The power to declare that a strike is illegal is also given to the Industrial Ct. It is said that in case an employer wants to take action against an employee on the ground that he had joined ail illegal strike, he cannot take such action, unless, in the first instance, the Industrial Ct. had declared the strike to be illegal. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine whether a strike which is being incited by the person whom it is proposed to detain is or is not an illegal strike. We do appreciate that the question as to whether a strike is legal or not legal is a matter of some considerable difficulty in many cases: but we do not understand why the thing should be a matter of difficulty is all cases. Everything will depend upon whether the facts upon which the strike is to be declared legal or illegal are admitted or not. Determination of the facts would undoubtedly be a matter of considerable difficulty; but even if we assume that that is so, there is no reason why we should hold that the detaining authority has no power to determine that a particular strike which is being instigated is an illegal one. The detaining authority has got power to determine both questions of fact & questions of law. To refer to an example which has already been given above, if action was proposed to be taken against a detenu on the ground that he has really committed political murders with a view to spreading disorder in the State, the detaining authority is empowered to decide whether the detenu has or has not committed; the murders, & we fail to under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r illegal is not restricted to proceedings before the Labour Ct. or the Industrial Ct. Undoubtedly, it is the Industrial Ct., which has got the power to declare that a strike is legal or illegal. The Labour Ct. may determine whether the strike is legal or illegal, when it has got the question before it; but it does not mean that the question may not arise in other proceedings. For example, the question may arise in actions for breaches of contract; and it must be held that nothing in the Bombay Industrial Relations Act takes away the power of an ordinary Ct. to decide, or itself the question as to whether a strike is or is not legal, if the question is at issue in any matter before it, & we think that the same principle must apply to the determination by the detaining authority for the purpose of detention whether a strike is or is not illegal. This contention cannot, therefore, be accepted. 13. Then, I come to the next point which has been made on behalf of the detenue. It is said that the third ground is based upon an allegation that the detenu has been secretly publishing unauthorised objectionable news sheets which exhort the public, especially the labouring classes, be start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect for the purpose of the present petn. We fail to understand why then the act which is complained of does not come within the mischief which the Preventive Detention Act is enacted in order to prevent. It is true that in this case the exhortation is supposed to have been by way of issuing unauthorised news sheets, & that issuing of unauthorised news sheets is a matter which would enable the proper authority to take action restricting the freedom of expression of the detenu; but that by itself would not show that it was not permissible for the detaining authority to take action under the Preventive Detention Act. The same act may, at the same time, warrant restrictions being placed on two freedoms, namely one freedom of the right of expression, & the other, the liberty of the person. The two are dealt with separately, one, under Article 19 & the other under Articles 21 & 22 of the Constitution & in our view, no complaint can he made against the order of detention on the ground that to the extent that the detenu published secretly unauthorised objectionable news sheets action could have been taken against him under the Press (Emergency Powers) Act. 16. The last point which has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 950, (date of petnr.'s arrest), the order passed by him on 29-3-1980, could not be acted upon on June 14. Now, we cannot agree with these contentions. We cannot hold that as soon as a Dist. Mag. is transferred relieved of his duties as a Dist. Mag. in a particular District, all his orders lose their value & cease to be orders of a Dist. Mag. & cannot be given effect to. Such a construction would at once lead to administrative chaos, since transfers of officers are an ordinary incident of a day to day administration. We do not think that the delay of two & a half months which occurred in this case between the date on which the order of detenu was passed & the date on which the detenu was arrested was an unreasonable length of time which required the passing of a fresh detention order by another Dist. Mag, In these circumstances, we think that we must reject Mr. Sule's contention that the order of detention dated 29-3-1950, passed by Mr. Damry, which was executed on 14-6-1950, when Mr. Ghatge was in charge of the District, could not be called a valid order of detention. 18. Now, the grounds which were furnished to the detenu on 10-6-1950, were that- (1) he was secretly & ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the order shall, as soon as may be, communicate to such person the grounds on which the order has been made. Now, if by the expression "grounds on which the order has been made," we are to construe that only the language of Sub-clauses (a) & (b) of Clause (1) of Section 3 of the Act is to be mechanically copied & reproduced in the grounds to be furnished under the Constitution & the statute of detention, the object of enacting Sub-clause (6) of Article 22 of the Constitution would be defeated at once. Article 22, Sub-clause (6), lays down that "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." This clearly shows that the facts on which the detention is to be based are to be disclosed by the detaining authority, except in so far as the said authority considers the divulging of certain facts to be against public interest. The possible & reasonable construction we can put upon the language of Article 22(6) is that the detaining authority, while furnishing grounds of detention, is required to state facts on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talments. 21. In our view, as I have just said, all facts on which the detention order is based ought to be furnished to the detenu in the grounds to be given to him under Section 7 of the Act & Clause (5) of Article 32 of the Constitution, unless, of course, the detaining authority under Clause (6) of Article 22 considers the disclosure of certain facts to be against public interest. In this context, I must point out that we have noticed a general, but definite, tendency amongst the detaining authorities to gay in their affidavits in a vague way that whatever is stated in the grounds of detention is the only material which could be furnished to the detenu & that any further disclosure is against public interest. For instance, in this particular case, the detaining authority has made an affidavit, in para. 12 of which it is stated : "Besides the grounds given to the appct. no other facts could be disclosed as it is considered to be against the public interest to disclose them." Now, I must express disapproval of the omnibus manner in Which recourse is taken to Article 22(6) of the Constitution for claiming privilege. In my opinion, such general, indefinite & omnibus ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally not stated in the grounds of detention. I agree that if the disclosure of these facts is against public interest, the withholding thereof from the detenu & the Ct. will be protected by Article 22(6). But, in any case, the bare points on which the privilege is claimed can be mentioned, & ought to be mentioned, without giving details regarding them. It is difficult to imagine how public interest can possibly be affected adversely by a mere statement of bare points on which the detaining authority claims privilege to withhold their details. Of course, it is possible that even if the detaining authority specifies the points regarding which privilege is claimed under Article 22(6), the petnr can always think of & allege other points or matters which are not covered by the points specifically mentioned as privileged That may be so. But, in my opinion, on that score a statement of points regarding which privilege is claimed under Article 22(6) cannot be withheld from the petnr. & the Ct., since in absence of such statement the Ct. might find itself in some cases in difficulty of deciding whether there was a proper application of the mind, of the detaining authority. In short, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an illegal strike. His contention is that whenever a penalty is to be imposed upon a person or whenever detention order is to be passed against him in pursuance of an alleged incitement by him to resort to a strike, the said action cannot be taken until there is a prior determination by a Labour Ct. or the Bombay Industrial Ct. that the strike actual or in offing is an illegal strike. On the other hand, it is contended by the learned Govt. Pleader that on one or the other of the conditions referred to in 9.97, Bombay Industrial Relations Act, 1946, coming into existence, the strike automatically becomes illegal, & therefore a detaining authority holding that a certain person was inciting others to resort to such a strike can proceed to take action against him under the Preventive Detention Act without waiting till the determination of the illegality of the strike by the Labour Ct. or the Bombay Industrial Ct. On the reading of the Bombay Industrial Relations Act particularly Sections 99, 101(1)(g) & 103 we agree with Mr. Sule that as far as action under the Bombay Industrial Relations Act is concerned, it cannot be taken against a person unless there is a prior determination by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to is illegal on that score, our view is that it is open to him to take action under the Preventive Detention Act against the person concerned That being so, in our view, ground No. 2 of the grounds is a good and valid ground. 24. This takes us to the last ground, which says that the detenu was secretly publishing unauthorised objectionable news sheets exhorting the public especially the labouring classes to start an open & violent revolt to overthrow Govt. It is contended by Mr. Sule that every individual has got a fundamental right of freedom of expression & if that right is to be curtailed in any manner, it can only be curtailed under the Press (Emergency Powers) Act which specifically deals with such curtailment. In our view, the argument fails. Liberty of a person is a much wider thing than freedom of expression & what was sought to be curtailed in this case was the liberty of the detenu as distinguished from his freedom of expression. Moreover, this ground alleges that the detenu was exhorting the public to start an open & violent revolt to overthrow Govt. That, at any rate, is a valid ground for detention of a person under the Preventive Detention Act. Accordingly we do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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