TMI Blog1979 (8) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... and only the grounds of detention were communicated to him, his learned counsel Mr. Ramamurthi has not raised any controversy on that account. He has in fact given up several other points on which the writ petition has been filed, and has contended himself by putting his arguments in two ways. Firstly he has argued that some of the grounds are so vague that the petitioner has not found it possible to exercise his fundamental right of making a representation under article 22 (5) of the Constitution. Secondly he has argued that some of the grounds are irrelevant for the purpose of making of an order under section 8 of the Act. We shall therefore confine ourselves to a consideration of these two points of controversy. The grounds of detention have admittedly been sent to the petitioner by way of an annexure to the District Magistrate s order No. 49-54/ST dated April 12, 1979. It has been stated therein that the detention has been ordered on the grounds specified in the Annexure...which also contains facts relevant thereto, and the petitioner has been informed that he may make a representation to the Government against the order of detention if he so desires. We shall refer to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishonour and rise is revolt against oppression. You went to the extent of saying that India should vacate the forcible occupation of the State, as the Kashmir question has not so far been settled. These irresponsible utterances of you are likely to create feelings of hatred and enmity which will ultimately disturb the public order. On 29-3-1979 posters were found pasted on walls in Kulgam area which were got published by the CPI (ML). It was learnt that there was your hand in pasting these posters, the posters were captioned Inqalab ke bager koe hal nahin . The contents of the poster, among other things, revealed that it made a mention of plebiscite saying that the demand was given up with ulterior motives. It further stated that the people should prepare themselves for revolution. You were also noticed instigating the Educational (sic) unemployed youth who had recently gone on a hunger strike at Anantnag. On 4-4-1979 and 5-4-1979 after Mr. Z. A. Bhutto was hanged, you were found leading the unruly mobs in different villages and instigating them to set the house of J.E.I. worker on fire. As a result of this instigation a number of houses were set on fire, property lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mention the villages where the petitioner was reported to have recently started the campaign asking the inhabitants not to sell their extra paddy, or to manhandle the government officials. The paragraph is therefore undoubtedly very vague. But even if the first paragraph is left out of consideration on the pretext that it is in the nature of a preamble, the fifth paragraph is quite vague, for while it states that the petitioner was noticed instigating the educated unemployed youth who had recently gone on a hunger strike in Anantnag, the nature or the purpose of the alleged instigation has not been stated so that it is not possible to appreciate whether it could be said to fall within the mischief of clause (b) of sub-section (3) of section 8 which defines what is meant by acting in any manner prejudicial to the maintenance of public order within the meaning of clause (a) (i) of sub-section (1) of section 8. For instance, if it was noticed that the petitioner was instigating the educated unemployed youth to go on hunger strike for the purpose of pressing their demand for employment, that would not amount to acting in any manner prejudicial to the maintenance of public or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution has been violated and the order of detention is bad for that reason alone. Reference in this connection may also be made to the decisions in Tarapada De and others v. The State of West Bengal, Dr. Ram Krishan Bhardwaj v. State of Delhi and other Shibban Lal Saxena v. State of Uttar Pradesh Rameshwar Lal Patwari v. State of Bihar, Motilal Jain v. State of Bihar and others and Pushkar Mukherjee and others v. State of West Bengal. It has next been argued by the learned counsel for the petitioner that at least five of the grounds of detention are irrelevant. It has been stated in paragraph 2 of the grounds of detention that after compelling the shopkeepers to close down their shops on February 9, 1979, the petitioner organised a meeting at Chowalgam and asked the participants to lodge a protest against the treatment meted out to Shri Z. A. Bhutto, and that while in fact the petitioner did not have any sympathy for the late Prime Minister of Pakistan, he did it with the intention of exploiting the situation and to create lawlessness. We have made a reference to clause (b) of sub-section (3) of section 8 of the Act which defines what is meant by acting in any manner prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovoked the audience to use force. Peaceful and lawful revolt, eschewing violence, is one of the well known modes of seeking redress in this country. A substantial part of the statement of facts mentioned in paragraph 3 of the grounds of detention is therefore irrelevant and can not justify the order of detention under section 8 of the Act. It has been stated in paragraph 4 that a poster was found pasted on walls in Kulgam area on March 29, 1979, in the pasting of which the petitioner had a hand. The poster was captioned Inqilab ke baghair koi hall nahin , and it mentioned that the demand for plebiscite was given up with ulterior motives. It further said that the people should prepare themselves for revolution. But even if it were assumed that the petitioner had hand in pasting the poster, which is alleged to have been published by the CPI (ML), it cannot be said that he thereby acted in any manner prejudicial to the maintenance of public order, for his alleged action did not fall within the purview of any of the subclauses of clause (b) of sub-section (3) of section 8 of the Act. Apart from the fact that it has not been stated that the poster promoted, or propagated or attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument was advanced by Dr. Singhvi to sustain the order of detention and this has led me to add this brief note to the opinion of my brother Shinghal, J., with whose conclusions I agree. The Constitution of India recognizes preventive detention as a necessary evil, but, nonetheless, an evil. So we have, by constitutional mandate, circumscribed the making of laws providing for preventive detention. While Article 22 Clauses (4), (5), (6) and (7) expressly deal with preventive detention, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 19(1) (d) guarantees to citizens the right to move freely throughout the territory of India subject to reasonable restrictions made in the interests of the general public as mentioned in Article 19(5). At one time it was thought that Article 22 was a complete code in regard to laws providing for preventive detention and that the validity of an order of detention should be determined strictly according to the terms and within the four corners of that article . It was held in A.K. Gopalan v. State of Madras, that a detenu may not claim that the freedom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll settled that a detenu has two rights under Article 22(5) of the Constitution: (1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or nonexistent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant of obscure ground among several relevant and clear grounds is an invasion of the detenu s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact which have led to the passing of the order of detention are grounds of detention . If such allegations are irrelevant or vague the detenu is entitled to be released. The attempt of Dr. Singhvi was to treat that allegation which according to him was the immediate cause of the order of detention as the only ground of detention and all other allegations earlier made as were introductory and background facts. We are unable to so dissect the factual allegations mentioned in the document supplied to the detenu as furnishing the grounds of detention. The last straw which breaks a camel s back does not make weightless the other loads on the camel s back. The grounds of detention begin with the statement that the detenu is a die-hard Naxalite . Dr. Singhvi described a Naxalite as a votary of change by resort to violence and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation: the Capitalist Press !). Many may not agree with Dr. Singhvi. Some think of Naxalites as blood-thirsty monsters; some compare them to Joan of Arc. It all depends on the class to which one belongs, one s political hues and ideological perceptions.) At one stage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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