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A.K. Gopalan Versus The Government Of India

1965 (10) TMI 76 - SUPREME COURT OF INDIA

Dated:- 27-10-1965 - Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Bachawat, R.S., Ramaswami, V., JJ. For The Petitioner : N. C. Chatterjee, M. R. K. Pillai, M. S. K. Aiyangar, D. P. Singh, R. K. Garg, S. C. Agarwala, M. K. Ramamurthi For The Respondent : N. S. Bindra, B. R. G. K. Achar and R. N. Sachthey Wanchoo, J. JUDGMENT These two petitions under Art. 32 of the Constitution for a writ of habeas corpus raise common questions and will be dealt with together. The main points rais .....

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assed on December 29, 1964. In pursuance of these orders the petitioners were arrested on December 30, 1964. At that time the State of Kerala was being governed by virtue of the Proclamation of the President dated September 10, 1964. By this Proclamation the President assumed to himself all functions of the Government (1) [1966] 2 S.C.R. 178. of the State of Kerala and all powers vested in or exercisable by the Governor of that State and declared that the powers of the legislature of the said St .....

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e inasmuch as a general election was going to be hold in Kerala in the beginning of March 1965. In order to damage the prospects of the Left Communist Party in the election and to improve that of the Congress Party these orders of detention were made under the Rules. After the elections were over, the Left Communist Party emerged as the largest single party. There was an apprehension that if the Proclamation was withdrawn and a party government came into power in the State, the petitioners and o .....

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r in the State of Kerala after the elections. The petitioners further contend that there was no application of the mind of the authority when the orders of' detention were passed on December 29, 1964 and March 4, 1965. Further it is contended that there was no material before the Central Government on March 4, 1965 on the basis of which the orders of detention could be passed and therefore the orders passed on that date were illegal. Lastly, it is urged that if the orders of detention passed .....

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#39;s order having been served on the petitioners' on March 6, 1965 began from that day and therefore there was no warrant -for detention between March 4 and March 6, 1965. Replies have been filed on behalf of the Government of India traversing all the allegations so far as detention under the order dated March 4, 1965 is concerned. No reply has been filed on behalf of the Governor of Kerala with respect to the detention order of December 29, 1964 for the reason that the State, of Kerala was .....

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ated March 4, 1965 had been .passed. It is therefore unnecessary to consider the validity of the detention orders made on December 29, 1964, for those Orders are no longer in force and the petitioners are detained by orders passed on March 4, 1965. We shall therefore consider only the grounds urged against the validity of the orders passed on March 4, 1965. The first point that is urged is that these orders are mala fide inasmuch as they were passed to circumvent the possibility of the petitione .....

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defence, public safety and public order it was necessary to detain them. It has been clearly stated on behalf of the Government of India that on the materials placed before it is was so satisfied before it passed the orders dated March 4, 1965. In the face of this affidavit on behalf of the Government of India it cannot possibly be said that the orders passed on March 4, 1965 were mala fide, even if we were to assume that there was any such possibility of release as has been alleged by the peti .....

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nion that there is no force in this convention either. The reply on behalf of Government of India in this connection is that the question as to the detention, of the persons who were ordered to be detained on March 4, 1965 was under consideration of the Government of India. for quite some time and that only detention orders were passed on one day. It has also been stated on behalf of the Government of India that it was satisfied with respect to each individual person ordered to be detained on Ma .....

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uld not be believed. This contention must also fail. Then it is urged that there was no material before the Central Government before it passed the orders on March 4, 1965. This allegation has also been denied on behalf of the government of India. The allegation is that the file relating to these detenus must have been with the Government of Kerala in Trivandrum till March 4, 1965 and therefore the Government of -India passed the orders on March 4, 1965 without any material before it. The reply .....

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concerned activities of the petitioners and others like them were with Government of India and it was after the government had satisfied itself from those papers as to the likely prejudicial. activities of the Sup. Ci/66-14 4 32 petitioners that it passed the orders in question. There is therefore no force in this contention either and it is hereby rejected. We now come to the cancellation of the detention orders dated December 29, 1964 on March 4, 1965 and the service of the orders of cancella .....

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through the agency of the Governor of Kerala in respect of the governance of the State and it was open to the President to cancel the order passed by his agent and that is what he did on March 4, 1965. In the circumstances the cancellation cannot be assailed as illegal. But it is urged that if the orders of detention passed on December 29, 1964 were good orders, they could not be cancelled except by release of detenus. We cannot accept this contention. These orders were passed when the Governmen .....

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ons for itself could be given effect to by asking the President to cancel the orders of the Governor dated December 29, 1964. Thereafter the Central Government could pass the order of March 4, 1965 detaining. the petitioners and others like them. Even where -Persons are detained by orders of the State Government we can see 1 no illegality in the Central Government asking the State Government concerned to withdraw its order of detention and' to detain the persons thereafter by orders of the C .....

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