TMI Blog1989 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... d in March 1987 he was elected to the Municipal Council as an independent candidate defeating the Telugu Dasam and Congress (1) candidates by a large margin. It is his case that the local leadership of the ruling Telugu Desam Party having failed to woo him into their fold he was pressurised through the Excise and Police authorities foisting false cases upon him. On 13.11.1987, the police having summoned him to the Police Station for taking his photograph as was done in case of criminals, he moved the Andhra Pradesh High Court by Writ Petition No. 79038 of 1987 and the High Court was pleased to issue directions as prayed for, by its order dated 17.12.1987. Thereafter the excise authorities are stated to have registered some cases against the appellant who applied for and was granted bail on 10.5.1988 rejecting the Excise authorities' prayer for custody. Scenting a move to detain the appellant under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootlleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, hereinafter referred to as 'the Act', the appellant filed Writ Petition No. 8610 of 1988 on 6.6.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such other orders as are necessary in the interests of justice. Admittedly no specific order was passed on this miscellaneous petition. It appears that a Counter Affidavit was filed in the writ petition on behalf of the respondents and the appellant filed a reply affidavit thereto. 5. A Division Bench of the High Court of Andhra Pradesh on reference by the learned Single Judge heard the writ petition analogously with another writ petition and observing, inter alia, that as an order of detention was made even before the writ petition was filed, held that the prayer in the writ petition had become infructuous; and that there were no extraordinary or special reasons to depart from the normal rule, namely, that in such a case the appellant should first surrender and move for a writ of habeas corpus, and accordingly dismissed the writ petition. 6. Mr. M.C. Bhandare, the learned Counsel for the appellant submits, inter alia, that the High Court erred in dismissing the appellant's writ petition holding that there were no extraordinary circumstances or special reasons to depart from the normal rule that the appellant in such a case should first surrender and then move a petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice, the Bench took the view that it was but appropriate and proper that the court evolved and followed a practice and procedure where it would not ordinarily entertain a challenge to a preventive detention unless the person concerned submitted himself to the order and not to encourage persons against whom orders of preventive detention were made by the competent authority under a valid enactment to avoid the process of law and at the same time seek the protection of law from this Court. Relying on several decisions of its own, the Court observed: There is no presumption that any and every order of detention is bad. The normal rule shall therefore be surrender to the order first and then approach this Court. Only in extraordinary cases, where it appears that the State is exercising its power under a preventive detention statute for an oblique purpose, or in/an outrageous and/or vindictive manner, or where the order of detention is ex-facie invalid, would this Court depart from this rule. Now, what would be such extraordinary case cannot and, indeed, should not be defined or specified. It is better left to the sound judgment and decision of this Court. 10. The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued only when there was actual illegal detention, that was not to say that an illegal order of detention could not be successfully challenged. In para 11 of the report, the Court held: Article 226 is couched in language wide enough to protect a person against an illegal invasion of his right to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained. We cannot countenance and do not accept the Advocate-General's submission that the High Courts are impotent to give relief against the prospect of illegal detention and must first require the intended detenu to surrender to that illegal detention. We are satisfied that the High Courts may under the provisions of Article 226 issue a direction, order and writ in the nature of mandamus and/or certiorari quashing an illegal order of detention and may by direction, order and writ in the nature of prohibition enjoin the person threatening the illegal detention from executing the threat. Accordingly the Court held that it would intervene to strike down an illegal order of detention. If the court could in matters of personal liberty intervene on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng anything in Article 32, empowers the High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose; and it also envisages making of interim orders, whether by way of injunction or stay or any other manner in such a proceeding. Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. For enforcement of one's right to life and personal liberty resort to Article 226(1) has thus been provided for. What is the ambit of enforcement of the right ? The word 'enforcement' has also been used in Article 32 of the Constitution which provides the remedy for enforcement of rights conferred by Part III of the Constitution. The word 'enforcement' has not been defined by the Constitution. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication under Article 32 could not be maintained until the State had taken or threatened to take any action under the impugned law which again, if remedy to be taken would infringe the petitioner's fundamental rights, was negatived by this Court, holding that in cases arising under those enactments the proprietors could invoke the jurisdiction of this Court under Article 32 when the State did or threatened to do the overt act (emphasis supplied). It was observed that quite conceivably an enactment may immediately on its coming into force take away or abridge the fundamental rights of a person by its very terms and without any further overt act has been done. The impugned Act was said to be an instance of such enactment. In such a case, it was held, the infringement of the fundamental right was complete eo instanti the passing of the enactment and, therefore, there could be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under Article 32. It was also observed that to say that a person, whose fundamental right had been infringed by the mere operation of an enactment, was not entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it important and futile. 18. Despite the power of the State says Jean Dabin , there are always smart people who contrive to violate the laws without incurring the rigours of compulsion : or, again, certain rules are psychologically or technically awkward to apply, so that the machinery of compulsion lends them but insufficient aid. In any case, actual inefficacy or impotence of compulsion can affect the validity of the rule even less than disobedience; that validity binds, and continues to bind, by virtue of the very disposition made by the rule . 19. Analytical positivist concept of right has been differently analysed. Hohfeld writing on fundamental legal concepts as applied in judicial reasoning analyses four ideas. One of those is that a right may be a claim-right. P has a right to do X, it means to indicate that Q or everyone else has a duty to let P do X. The existence of such a duty gives P some sort of claim against Q. Claim-rights may be either in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehaviour that constitutes the content of the legal obligation identical with the reflex right. If an individual, towards which another individual is obligated to a certain behaviour, does not have the legal power to bring about by a legal action the execution of a sanction as a reaction against the no fulfillment of the obligation, then the act by which he demands fulfillment of the obligation has no specific legal effect; the act is legally irrelevant, except for not being legally prohibited. Therefore, a 'claim' as legally effective act exists, only when a law exists, which means that an individual has she legal power. The subject of a right may be not only one individual but two or several individuals, including the State. 21. In the language of Kelsen the right of an individual is either a mere reflex right-the reflex of legal obligation existing towards this individual; or a private right in the technical sense -the legal power bestowed upon an individual to bring about by legal action the enforcement of the fulfillment of an obligation existing toward him, that is, the legal power. From the above analysis it is clear that in the instant case the appellant's fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter affidavit filed by the Collector and District Magistrate in the High Court to the writ petition as well as the W.P.M.P, there was no reply to para 11 of the W.P.M.P, and it was nowhere stated that the detention order was approved by the State Government. In this Court in the Special Leave Petition Ground No. V is as follows ; The Hon'ble High Court has erred in not noting the infirmity the order of detention inasmuch as the approval of State Government of Andhra Pradesh for the order of the detention made by the District Magistrate, Cuddapah was not obtained within the period of 12 days as enjoined under Sub-section (3) of Section 3 of the Act. The order is therefore non est in law 26. In the Counter Affidavit of the Collector and District Magistrate there was not even a whisper in denial of this fact. 27. The learned Counsel for the respondents at the hearing could not deny before us that the detention order had not been approved by the Government within 12 days. On his request time was granted to produce materials. He has now filed reply affidavit on behalf of the respondents to the rejoinder affidavit filed by the appellant. Scanning this affidavit also we d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinues to be in detention or not. Therefore, even though the detenu was released, if the detention order was in force, his case was required to be placed before the Advisory Board. This being a mandatory provision and having not been complied with the detention order even if otherwise it was in force, cannot be said to have been in force after three weeks. Under Article 22 of the Constitution of India a person cannot be kept in detention beyond three months without referring his case to an Advisory Board under the appropriate law. Fn either case the appellant's case having not been referred to an Advisory Board the detention order cannot be said to have remained in force after the statutory period. It is, therefore, not necessary to go into the validity or otherwise of the grounds of detention. 30. In the result we set aside the impugned Judgment of the High Court and hold that the detention order ceased to be in force after 12 days of making thereof and even if it was in force it ceased to be in force for failure to refer the appellant's case to the Advisory Board within the time prescribed by law; and accordingly, we quash the same. The appeal is accordingly allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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