TMI Blog1973 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... o Government employees in Hooghly Collectorate, were prosecuted for their alleged parts in the first two incidents on the basis of the first information report dated September 14, 1971 under Section 143/506 of the Penal Code. On March 29, 1972, they were discharged by the Magistrate on a final report of the police dated March 10, 1972. Pursuant to the said order of detention, the petitioner was detained and is still in Hooghly jail. 3. The mother of the petitioner thereafter filed an application No. 318 of 1972 in the High Court of Calcutta under Section 491 of the CrPC. In that application the petitioner's detention was challenged only on two grounds, namely, vagueness of the grounds of detention and their irrelevance. On May 29, 1972, the High Court dismissed the said application. The present petition is more comprehensive and for the first time challenges the validity of several provisions of the Act. 4. The record before us shows that all the steps required under the Act have been taken and complied with in the time and manner prescribed by the Act. No objection, therefore, to the petitioner's detention on that ground can be validly taken. The petitioner's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... board based on such materials before government confirmed the detention. 7. The hearing of the case started before the Constitution Bench on November 17, 1972 and was heard on that day and again on November 21, 1972 and December 1, 1972. It seems that a contention was then raised as to the validity of Section 17A of the Act which provides for a period of detention for 21 months without consulting an advisory board, which question, the Bench thought, required reconsideration of the decision in Gopalan v. Madras. 1950CriLJ1383 . The Constitution Bench thought, therefore, that the case should be referred to a larger bench, and that is how this case has come up before us for disposal. 8. The Act was passed on July 2, 1971. Its long title shows that if was passed to provide for detention for the purpose of maintenance of internal security and matters connected therewith. Section 3(1)(a) empowers the Central and the State Governments to make an order detaining a person, if satisfied with respect to such person that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to : (i) the defence of India, the relations of India with foreign powers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nters or attempts to enter a notified area or is found therein in breach of Section 3 of the Criminal Law Amendment Act, 1961, or where such a foreigner enters or attempts to enter in an area adjoining the borders of India specified under Section 139 of the Border Security Forces, Act, 1968 without a travel document, or where the Central Government has reason to believe that such a foreigner commits or is likely to commit an offence under the Official Secrets Act, 1923. Section 17 thus lays down classes of cases in or circumstances under which foreigners can be detained for a period longer than three months without reference to an advisory board. 9. Article 19(1) guarantees the rights of freedom of speech and expression, of assembly, to form associations and unions to move freely throughout India, to reside and settle in any part of India and to practise any profession, occupation, trade or business, subject to reasonable restrictions which may be imposed by law as provided by Clauses (2) to (6) thereof. Article 21 guarantees protection of life and liberty, the deprivation of which is not permissible, except in accordance with procedure established by law. Article 22. by its Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce during the period of operation of the proclamation of emergency and for six months thereafter. By Section 6, the Act introduced amendments in several Acts, one amongst them being the Maintenance of Internal Security Act, 1971. Clause (d) of Sub-section (6) of Section 6 amended Section 13 of the Act by adding after the words therein from the date of detention , the words and figures or until the expiry of the Defence of India Act, 1971, whichever is later . By Clause (e) of Sub-section (6) of Section 6, a new section, Section 17A was inserted in the Act. The new section reads as follows : 17A. (1) Notwithstanding anything contained in the foregoing provisions of this Act, during the period of operation of the Proclamation of Emergency issued on the 3rd day of December, 1971, any person (including a foreigner) in respect of whom an order of detention has been made under this Act, may be detained without obtaining the opinion of the Advisory Board for a period longer than three months, but not exceeding two years from the date of his detention in any of, the following classes of cases or under any of the following circumstances, namely :- (a) where such person had been det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule, except one, viz., maintenance of essential supplies and services, in respect of which Parliament has the power to pass preventive detention laws. 13. Counsel for the petitioner challenged the validity of the provisions of the Act and the detention order mainly on the following grounds : (1) that the amendments introduced in the Act by Section 6(6)(d) and (e) are violative of Article 22(4), (5) and (7.); (2) that Section 10, both prior to and after its amendment, contravenes Article 22(4); (3) that Section 6(6)(d) and (e) of the Defence of India Act contravenes Article 14; (4) that the maximum period prescribed by the amendment to Section 13 by Section 6(6)(d) of the Defence of India Act and by the new Section 17A(2)(d) is ultra vires the powers of Parliament since it amounts to punitive and not preventive detention; (5) that Sections 3, 5, 8, 11 and 12 of the Act are violative of Articles 14, 19 and 21, on the ground that they are unreasonable restrictions and are not saved by any of the sub-clauses of Article 19(1); and (6) that the amendments brought about in them by Section 6(6)(d) and (e) of the Defence of India Act cannot breathe life in them as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 967]3SCR399 State of M.P., v. Thakur Bharat Singh, [1967]2SCR454 . S.G. Jaisingham v. Union of India, [1967]65ITR34(SC) . Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi. [1967]3SCR525 . 15. The contention, however, is not borne out by the provisions of Sections 10 and 17A(1) and (2). In the first place, Section 10 opens with the words save as otherwise expressly provided in this Act . These words mean that the section would apply only to cases not expressly provided for in the Act, that is to say, it would not apply to cases falling under Sections 17 and 17A which deal with cases otherwise expressly provided in the Act. In the second place, the words may be detained in Section 17A(1) go with the words which follow them, namely, without obtaining the opinion of the advisory board and in any of the following classes of cases or under any of the following circumstances- . The words may be detained , no doubt, enable the authority to detain a person without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding two years in the cases therein set out. The words may be detained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (4); (2) whether Parliament's power to enact a detention law is limited by the requirements laid down in Clause (7); and (3) whether setting out verbatim the heads or subjects or some of them upon which Parliament can enact such a law would mean compliance of the requirements of Clause (7). 18. These very questions were considered in one form or another in Gopalan v. Madras 1950CriLJ1383 in connection with Section 12 of the Preventive Detention Act, 1950. The validity of that section was impugned on the ground of its not having complied with the requirements laid down in Clause (7), firstly, because the section merely enumerated the heads or subjects, except one, namely, maintenance of essential supplies and services upon which under entries 9 and 3 of Lists I and III respectively Parliament could enact a detention law and not the class or classes of cases and the circumstances in which detention, without the board's opinion, could be ordered, and secondly, because it failed to comply with both the requirements, the word 'and' in that connection being used conjunctively and not disjunctively. Section 3(1) of that Act authorised the Central or the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isory board, and secondly, that matters referred to in Section 12 constituted sufficient description of circumstances or classes of cases so as to comply with the requirements of Article 22(7)(a), and that therefore, the section was not open to any Constitutional challenge. 20. The minority Court consisting of Fazl Ali and Mahajan, JJ., (as the latter then was) accepted the petitioner's contention in both its aspects and held that the word 'and' meant the conjunctive and not the disjunctive, and that therefore, the impugned provision had to specify both the classes of cases and the circumstances in which detention for a longer period could be directed without a board's opinion. They also held that the expressions class or classes of cases and the circumstances would not mean merely the heads or the subjects on which a detention law was permissible under Clause (7)(a). 21. Kania, C.J., held that the word 'and' in Clause (7)(a) meant that the power of preventive detention beyond three months may be exercised, either for the circumstances in which or the class or classes of cases in which a person was suspected to be doing the objectional things menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, there was no reason why the words of those entries could not be used in Section 12 so as to comply with the requirement of Clause (7)(a). (127-128) Patanjali Sastri, J., thought that Clauses (4) and (7) were independent clauses and could not be correlated so as to characterise Clause (7), as a proviso or exception to Clause (4), and that to read them as a rule and an exception was against their language and structure. He also thought that Clause (7) dealt with preventive detention, a purely protectional measure, which must necessarily proceed in all cases on suspicion or anticipation as distinct from proof, [Rex v. Halliday [1917] A.C. 260 and that in such laws it would be impossible to mention the various circumstances or to enumerate various classes of cases exhaustively for which a person should be detained for more than three months except in broad outline. (214) According to him, sufficient guidance could be given by broadly indicating the general nature of the prejudicial activities which a person is likely to indulge in. He observed that he failed to see why enumeration of five out of the six subjects on which a detention law was permissible under the two entries could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rule and Clause (7) engrafted an exception to it, and that it was never intended that Parliament could treat the normal as the abnormal, or the rule as an exception; (2) that the circumstances to be prescribed must be special and extraordinary and the class or classes of cases must be of the same nature. The Constitution never contemplated that Parliament should mechanically reproduce all or most of the categories in the legislative entries almost verbatim and not to apply its mind to decide in what circumstances and in what class or classes of cases the advisory board should be dispensed with; (3) that even if Clauses (4) and (7) were treated as alternatives and not as a rule and an exception, a law under Clause (7)(a) would be an exceptionally drastic law and such a law must be intended for an exceptional situation and not for all the situations which would fall under the heads in the entries, under which a detention law is permissible. It followed, therefore, that class or classes of cases and the circumstances must be of a special nature to require legislation which dispenses with the safeguard of an advisory board. (173-176) Mahajan, J., (as he then was) held that if Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enabling power in Clause (7)(a) both Parliament and State legislatures are competent to make preventive detention laws under entry 3 of List III; (5) So far as Clause (7) of Article 22 is concerned, it is an enabling clause and provides for two situations in which a law under that clause can be made by Parliament alone. In other words, these two situations are independent of each other and are not conditions-precedent. The learned Attorney General argued that what Clause (7)(a) provides is that Parliament may prescribe the circumstances or prescribe class or classes of cases for which a person can be detained for more than three months without reference to an advisory board. In other words, the clause is an enabling clause authorising Parliament (1) to prescribe the circumstances under which a person may be detained for a period longer than three months de hors the advisory board; and (2) to prescribe the class or classes of cases etc. In this sense Parliament can do either of the two, and therefore, though Clause (7)(a) uses the word 'and', that word is used in the disjunctive and not in conjunctive sense. 'Circumstances', according to him, mean the heads or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature has acted upon, as perhaps Parliament did, while enacting the impugned Section 17A. 28. Article 19(1) in the first instance, guarantees the several freedoms, well accepted in all democratic systems, subject of course to the power of the State to impose reasonable restrictions in public interest and public good. Article 21 then guarantees the equally well accepted safeguard against arbitrary deprivation of life and personal liberty save in accordance with procedure established by law thereby ensuring government by law and not by men. Clauses (1) and (2) of Article 22 again lay down the well-accepted rule that a person detained in custody shall be expeditiously informed of the grounds of his arrest and guarantee his right to the assistance of a legal practitioner of his choice and the necessity of his having to be produced before a magistrate thus securing a judicial as against a legislative or an executive sanction for his arrest. 29. The non-applicability of Clauses (1) and (2) provided by Clause (3) of Article 22 in the case of an enemy-alien and a person detained under a preventive detention law was provided for, as is notorious, as a sequel to the tragic incidents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for, and (b) where Parliament acts under Clause (7)(a) and (b), subject in both the cases to the maximum period provided in the law under consideration. It will be seen that Sub-clause (a) of Clause (4) is not restricted to Parliamentary Statutes, while Sub-clause (b) is and applies to an Act passed by Parliament alone. 30. We next go to Clause (7). That clause by its Sub-clause (a) provides : Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months without the opinion of an Advisory Board in accordance with the provisions of Sub-clause (b) of Clause (4). Two alternative constructions of Clause (7)(a) were suggested before us. The learned Attorney-General submitted that Clauses (4) and (7) should be read together, and if so read, they mean two independent powers; (1) to make a law providing for longer detention with the provision for an advisory board, and (2) to make a law providing for a longer detention without an advisory board. He argued that, therefore, the powers were independent or alternative and there was no question of Clause (7)(a) being an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation placed on the power of Parliament under Sub-clause (a) is not to apply to a, law made by Parliament under Clause (7)(a) and (b). If the theory of alternative power of Parliament either to enable a law providing for a longer period but with the intercession of a Board or to enact a law under Clause (4)(b) read with Clause (7)(b) providing also for a longer detention but without the intercession of a board, were accepted Clause (4)(a) would be totally nullified by Clause (4)(b) read with Clause (7)(a). In other words, such a construction would mean that though the Constitution-makers laid down a safeguard against a law providing for a longer duration, they, in the very same breath, nullified that safeguard by generally empowering Parliament under Clauses (4)(b) read with Clause (7)(a) to enact laws with longer period of detention without the intercession of an advisory board. Surely, such an interpretation which nullifies one part of the same clause while interpreting its another part has to be avoided. Further, if Clause (4)(b) read with Clause (7)(a) was intended to override Clause (4)(a) and the safeguard required in a law providing for detention for a longer perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplated by Clause (4), i.e., three months and without the requirement of an advisory board. The expression the circumstances under which and the class or classes of cases evoked a controversy in Gopalan 1950CriLJ1383 which resulted in difference of opinion between the majority and the minority judges. That controversy practically in the same terms was repeated before us, one side contending that enumeration of the heads or subjects in the two entries on which a law of detention can be made would sufficiently comply with the requirement of Clause (7)(a), and the other side contending against such a meaning being given to the afore said expression. In deciding that controversy, one broad consideration at once arises and that is that the circumstances and the classes of cases mentioned in Clause (7)(a) are not limited to any one or more of the subjects set out in the two entries in respect of which a detention law can be made. If the contention that enumeration of these subjects would satisfy the requirement of Clause (7)(a) were to be right, a Parliamentary law can enumerate all the six subjects in the two entries and provide detention for a longer period for reasons connected w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that though the activities of persons thought necessary for detention may vary in degrees of their impact depending upon the situations existing at the time, all of them, irrespective of their degree of intensity and impact, would be clubbed together so as to treat them equally in a law under Clause (7)(a). In such a case even activities, which would not justify the dispensation of the safeguard of an advisory board as against those which need such dispensation, would be treated equally, with the result that in respect of all activities and all situations Parliament would be enabled to dispense with the safeguard of the intervention of an advisory board. What use would then be of having Clause (4)(a) if its requirement can be avoided by a law which simply sets out the subjects or some of them from the two entries? As Mahajan, J., pointed out in Gopalan, 1950CriLJ1383 the language of Clauses (4) and (7) show that they deal with three distinct situations; (1) where the activities and the persons likely to perpetrate them, though connected with the subjects in the entries, are of such a nature and consequence that three months' detention would meet the situation; (2) where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which only, as against the vest of the individuals and their activities, the safeguard of intercession of an independent body would not apply. The law under Clause (7)(a) would, as compared to the one to which Clause (4)(a) would apply, be a drastic law and the presumption would be that such a drastic law would apply to exceptional circumstances and exceptional activities expressly and in precise terms prescribed. 36. If Clause (7)(a) were construed to permit mere enumeration of the subjects in respect of which there is power to enact preventive detention laws, all those subjects can be set out verbatim, in which event Clause (4)(a) would be rendered otiose. An act prejudicial to the maintenance of essential supplies and services, e.g. possession of controlled or rational food articles in excess of statutory limits, would be equated for treatment with an act prejudicial to the security of India or of a State. On the other hand, an act sabotaging, for instance, lines or supplies and communication in times of an emergency, prejudicial to the maintenance of essential supplies and services would be equated with an act prejudicial to maintenance of public order in one locality or af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been or to be a member of, or to have been or to be active in the furtherance of the objects of any such organisation mentioned; and (4) If he has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that that person is likely to assist the enemy. Mahajan, J., (as he then was), likewise, referred to the classification of the prejudicial activities set out in Rule 34(6) of the Defence of India Rules, 1939. Such a classification of acts is also to be found in Rule 36(6) of the Defence of India Rules, 1971. Section 3(2) of the West Bengal (Prevention of Violent Activities) Act, 19 of 1970, similarly, classifies certain activities as falling within the expression acting in any manner prejudicial to the security of the State or the maintenance of public order. That provision runs as follows : (2) For the purposes of Sub-section (1), the expression 'acting in any manner prejudicial to the security of the State or the maintenance of public order' means- (a) using, or instigating any person by words, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvisory board in accordance with the provisions of Sub-clause (a) of Clause (4). With great respect to the distinguished judges who formed the majority in Gopalan, [1950] 3 S.C.R. 88. we are not able to concur in their views on the construction of Clause (4)(b) and Clause (7)(a) of Article 22. Section 17A of the Act, in our opinion, has failed to comply with the requirement of Clause (7)(a), and has therefore, to be declared bad as being inconsistent with that clause. 39. In Gopalan [1950] 3 S.C.R. 88. the majority court had held that Article 22 was a self-contained Code and therefore a law of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The view of Fazl Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article 19(a) to (d) and that law providing for preventive detention had to be subject to such judicial review as is obtainable under Clause (5) of that Article. In R.C. Cooper v. Union of India [1970]3SCR530 the aforesaid premise of the majority in Gopalan [1950] 3 S.C.R. 88. was disapproved and therefore it no longer holds the field. Though Cooper's case [1970]3SCR530 dealt with the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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