Full Judgment Text
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PETITIONER:
MASOOD ALAM ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT11/01/1973
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 897 1973 SCR (3) 268
1973 SCC (1) 551
CITATOR INFO :
R 1973 SC2469 (4,5,6)
R 1974 SC 255 (13)
R 1974 SC 432 (7)
R 1974 SC2151 (18)
F 1975 SC 90 (8,13)
C 1982 SC1315 (31)
RF 1986 SC2177 (40)
R 1987 SC2332 (22)
RF 1990 SC1196 (8)
ACT:
Maintenance of Internal Security Act, 1971 Section 3(1),
Section 14(2)- "Fresh facts"-Whether fresh detention can be
ordered without fresh facts after revocation of expiry of
the earlier order-Mala fides-Whether detention order under
Maintenance of Internal Security Act malafides, if
objectionable activities attract preventive provisions
(Chapter VIII) of the Cr. P.C. also-Whether second detention
order rendered mala fide by the fact that the order was
served when the detenu was already in jail.
HEADNOTE:
The detenu was arrested on June 15, 1972 under section
3(1)(a)(i) Arid (ii) of the Maintenance of Internal Security
Act, 1971. The order was issued on the same date on which
he was arrested under sections 107/117/151 of the Cr. P.C.
The order was to expire on the 26th June, 1972 as the same
was not approved under s. 3(3) by the Government. On 25-6-
1972, a fresh order of detention was passed which was served
on the detenu on 26-6-1972 while in jail. The second order
did not mention any fresh grounds of detentions. Both the
detention order were challenged on the groups (i) that no
fresh facts were disclosed for the fresh detention as
required by s. 14(2) of act and (iii)that the orders were
mala fide. Granting the writ of habeas corpus and directing
the release of the petitioner.
HELD : The second detention order was made without alleging
any fresh facts after the expiry of the first order. The
power of preventive detention is an extraordinary power
intended to be exercised in extraordinary emergent
circumstances. The legislative scheme of ss. 13 and 14 of
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the Act suggest that the detaining authority is expected to
know and to take into account all the exising grounds and
make one order of detention which must not go beyond the
period fixed and fix the maximum period of detention upto 12
months from the date of detention. It is to effectuate
this restriction on the maximum period and to ensure that it
is not rendered nugatory or ineffective by resorting to
camouflage of making a fresh order operative so-on aft& the
expiry of the period of detention, and also. to minimise the
resort to detention orders, that s. 14 restricts the
detention of a person on given set of facts to the original
order and does not permit a fresh order to be made on the
same grounds which were in existence when the original order
was made. [276H-277D]
Manubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252
of 1972 dated 31-10-1972, relied on.
Sampat Prakash v. State of J. & K.[1969] 3 S. C. R. 574,
distinguished.
If the grounds are relevant and germane to the object of the
Maintenance of Internal Security Act, then merely because
the objectionable activities covered thereby also attract
the provisions of Chapter VIII of the Cr. P.C., the
preventive detention cannot for that reason alone be
considered to be malafide provided the authority con is
satisfied of the necessity of the detention as contemplated
by the Act. [273C]
269
Sahib Singh Duggal, v. Union of India, [1966] 1 S.C.R.313,
Mohammed Salem Khan v. C. C. Bose, A.I.R. 1972 S.C.2256,
Boriahan Gorey v. State of West Bengal, A.I.R. 1972 S.C.2256,
relied on.
Merely because a person concerned has been served with a
fresh detention order while in custody, that service cannot
invalidate the order of detention. Although the past
conduct, activities and antecedent history should be
proximate in point of time and should have rational
connection withthe necessity for detention, what period
of past activity should beconsidered is within the
discretion of the detaining authority. [275C-H]
Ujagar Singh V. State of Punjab, [1952] S.C.R. 757, Makhan
Singh Tarsikka v. Stare of Punjab, A.I.R. 1964 S.C. 1120 and
Rameshwar Shaw v. District Magistrate Burdwan, [1964] 4
S.C.R. 921, referred to.
Hadibandhu Das v. The District Magistrate, Cuttack, [1969] 1
S.C.R. 227 and Kshetra Gogoi v. State of Assam, [1970] 2
S.C.R. 517, held inapplicable.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 469 and 470 of
1972.
Petitions under Article 32 of the Constitution of India for
the enforcement of fundamental rights.
Bashir Ahmad, K. L. Hathi, Manzar Ul-Islam and P. C. Kapur,
for the petitioners.
B. D. Sharma and R. N. Sachthey, for respondent No. 1.
D. P. Uniyal and O. P. Rana, for respondents Nos. 2 to 6
(in W.P. No. 469) and for respondent Nos. 223 (in W.P. No.
470).
The Judgment of the Court was delivered by
DUA, J. These two petitions under Art. 32 of the
Constitution for writs in the nature of habeas corpus
(Masood Alam v. Union of India & ors. W.P. no. 469 of 1972
and Abdul Bari Kairanvi v. Union of India W.P. No. 470 of
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1972), have been heard together and are being disposed of by
a common judgment.
Writ Petition No. 469 of 1972:
In writ petition no. 469 of 1972 we made a short order on
December 20, 1972 directing the release of Masood Alam
unless he was required in some other case, reserving our
reasons for his release to be given later. We now proceed
to deal with the arguments advanced on his behalf and give
our reasons for our decision.
Masood Alam, detenu-petitioner, was arrested on June 15,
1972 pursuant to an order of detention dated June 14, 1972.
No copy of that order is produced on the record. It is,
however, not disputed that the said order was made by the
District Magistrate under S. 3 (1) (a) (i) and (ii) of the
Maintenance of Internal
270
Security Act, 1971 (Act no. 26 of 1971) (hereinafter called
the Act). The grounds of detention signed by the District
Magistrate, Aligarh were served on the, petitioner on June
17, 1972, pursuant to s. 8 of the Act. Those grounds read
:-
"(1) That you have been exciting communal
feelings amongst Muslims and feeling of
disaffection towards the Government of India
and of hatred to other communities. You have
also been advocating use of force by Muslims
in India to secure withdrawal of the A.M.U.
(Amendment) Bill, 1971-now an Act. These
actions, which are a threat to security of the
State and the maintenance of public order,
find support from the following instances :-
(i) that you are organiser at Aligarh of
Youth Majlis a paramilitary Organisation which
imparts training to. Muslims in the use of
lathi, swords and knives, etc. You are member
of Al Jehad, an international Islamic,
movement. You are Naib Amir Ala Youth Majlis,
U.P.
(ii)You went to participate in Youth Majlis
training camp at Varanasi. You were trained
in the use of knife and demonstrated the same
at a function of the Youth Majlis held in
Mohalla Tantanpara, Aligarh.
(iii) You participated in a meeting addressed
by Shri Afaq Ahmed, Organiser, Youth Majlis,
U.P.
(iv)On 12-7-1971 you stressed upon members
of .Youth Majlis to organise branches of Youth
Majlis in each Mohalla. You went to Allahabad
to participate, in the Youth Majlis Camp orga-
nised there from 23 to 26-6-71 and were made
Naib Ala, U.P.
(V) You attended the meeting held at your
residence on 29-10-71 wherein training
programme of Youth Majlis in use of knife and
aiming by air gun was discussed.
(vi)You attended a private meeting of Muslim
Majlis on 11-1-1971 at the residence of Dr.
Hanif in Mohalla Rasalganj, Aligarh. You dis-
closed there that the Youth Majlis was fully
prepared to meet any situation on communal
basis and pleaded for funds for Youth Majlis.
271
2.That you have extra territorial
loyalties and are, therefore, a threat to
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security of India which is evidenced from the
following instances :-
(a) You visited Pakistan and returned from
there on 29-4-1971 and participated in a
meeting addressed by Shri Afaq Ahmad,
Organiser Youth Majljs, U.P. In this meeting
you disclosed that you had developed many
contacts in Pakistan and that people there had
given you enough money for the help of Muslims
in Aligarh.
(b) You on 16-7-1971 along with Abdul Bari
Qairanvi and Mohammad Obed were noticed
criticising Government of India’s policy
towards Bangla Desh and accused Government of
India and Indian Press of carrying on a false,
propaganda.
(c) You attended a meeting on 20-10-1971
held at your residence wherein Abdul Bari
Qairanvi asked the volunteers to remain
vigilant and prepared in view of Indo-Pak
armies. facing each other to meet the
situation which might result therefrom.
The Government, it appears, did not accord its approval of
the petitioner’s detention as required by s. 3 (3) of the
Act. According to para 22 of the Writ Petition, the
contents of which are not controverted, as expressly stated
in para 12 of the counter affidavit, on June 26, 1972 at
about 12 noon the following order was served on the
petitioner :-
"Sub : Release under Maintenance of Internal
Security Act on 25-6-1972 at 23.50 hrs. under
D.M. Aligarh Order dated 25-6-1972.
You are hereby informed that you are released
on 25-6-1972 at 23.50 hrs. vide D.M. Aligarh
Order dated 25-6-1972 on account of non-
receipt of approval from State, Government but
you were detained in Jail as under trial under
Rules 107/117, Cr. P.C. You may inform your
relations or lawyer if you want to arrange
your bail.
Sd/-
Superintendent,
Distt. Jail, Aligarh."
A fresh order of detention was also passed on June 25, 1972.
This order was made by the Governor of U.P. under s. 3(1) of
272
the Act and was served on the petitioner on June 26, 1972 at
about 3.30 p.m. It reads :
"Whereas the Governor of Uttar Pradesh is
satisfied with respect to Sri Masood Alam son
of late Sri Baboo Ayoob resident of Mohalla
Bani Israilan, Aligarh City, that with a view
to preventing him from acting in any manner
prejudicial to the security of the State and
the maintenance of public order, it is
necessary so to order
NOW THEREFORE, in exercise of the powers
conferred by sub-section (1) of section 3 of
the Maintenance of Internal Security Act, 1971
(no. 26 of 1.971), the Governor is hereby
pleased to direct that the said Sri Masood
Alam shall be detained under subclause (ii) of
clause (a) of sub-section (1) of subsection
(3) of the said Act in the District Jail,
Aligarh in the custody of the Superintendent
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of the said Jail.
By order of the Governor,
Sd/.
R.K. KAUL
Special Secretary".
On behalf of the petitioner both the aforesaid, orders of
detention are assailed before us. The first contention
pressed by Mr. Bashir Ahmad, appearing for the petitioner
relates to the earlier order of detention. He has tried to
assail that order with the object of showing mala fides of
the detaining authority in making ,the second order. In
this connection it is noteworthy that according to the
return of the State of Uttar Pradesh as averred in para27(r)
of the counter-affidavit of Shri R. K. Kaul, Special Secre-
tary, "the petitioner was arrested on 15th June 1972 under
section 107/117/151, Cr. P.C. and the, order of detention
was also served on him by the District Magistrate on the
same date. Orders for his release were issued by the
District Magistrate under the Maintenance of Internal
Security Act but he continued to be in Jail under the above
sections of the Cr. P.C." The order of release mentioned in
this para has reference to the, order dated June 25, 1972
when the petitioner was supposed to have been released from
his detention because of non-approval of his detention by
the State Government. Mr. Bashir Ahmad the counsel for the
detenu has contended that the grounds of detention dated
June 17, 1972 served on the petitioner under s. 8 of the Act
only suggest a threat to the security of the State and the
maintenance of public, order and that this does not mean
that the petitioner was likely to act in the near future in
a manner prejudicial to the security of State and
maintenance of public order. This conten-
273
tion ignores para 3 of the grounds in which it is clearly
stated that the District Magistrate was satisfied that the
petitioner was likely to act in a manner prejudicial to the
security of India, security of the State and maintenance of
public order and that with a view to preventing him from so
acting, it was necessary to detain him. The submission that
the use of the word ’likely’ in this para only brings the
petitioner’s case within the purview of the provisions of
Chapter VIII (Security Proceedings) of the Criminal
Procedure Code thereby justifying only proceedings under s.
107 of the Code and that an order of detention in such
circumstances is an abuse and misuse of the provisions of
the Act has only to be stated to be rejected. If the
grounds are relevant and germane to the object of the Act
then merely because the objectionable activities covered
thereby also attract the provisions of Ch. VIII, Cr. P.C.
the preventive detention cannot for that reason alone be
considered to be mala fide provided the authority concerned
is satisfied of the necessity of the detention as
contemplated by the Act : see Sahib Singh Duggal v. Union of
India(1), Mohammad Salem Khan v. C. C. Bose(2) and Borjahan
Gorey v. The Stale of West Bengal(3). The jurisdiction of
preventive detention sometimes described as jurisdiction of
suspicion depends on subjective satisfaction of the
detaining authority. It is designed to prevent the mischief
from being committed by depriving its suspected author of
the necessary facility for carrying out his nefarious
purpose. This Jurisdiction is thus essentially different
from that of judicial trials for the commission of offences
and also from preventive security proceedings in criminal
courts. both of which proceed on objective consideration of
the necessary facts for judicial determination by courts of
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law and justice functioning according to the prescribed
procedure. Merely because such jurisdiction of courts can
also be validly invoked does not by itself exclude the
jurisdiction of preventive detention under the Act. The
earlier order. therefore, cannot be described to be dither
illegal or mala fide on this ground. Although the
petitioner’s present detention is founded on the order dated
June 25. 1972 the earlier order was challenged with the sole
object of showing that the present detention is also mala
fide because the authorities are determined to keep the
petitioner in custody irrespective of the existence or non-
existence of valid grounds. We are not impressed by this
submission and are unable to hold that the circumstances in
which the earlier order was made in any way suggest mala
fides on the part of the detaining authority ’in making the
second order.
Regarding the second order also it has been suggested that
there is no imminent likelihood of the Petitioner acting in
a prejudicial manner and that his detention is thus an abuse
or misuse
(1) [1966] 1 S.C.R. 313.
(3) A.I.R. 1972 S.C. 2256.
(2) A.LR. 1972 S.C. 1760.
274
of the power of detention conferred by the Act. The scheme
of our Constitution with respect to the fundamental right of
personal liberty and the protection guaranteed against
arrest and detention of the individual is intended to be
real and effective, says the counsel, and adds that
preventive detention of a person for any reason short of
imminent likelihood of his acting in a prejudicial manner
must be considered to be an invasion of this right. Our
constitution undoubtedly guarantees various freedoms and
personal liberty to all persons in our ’Republic. But the
constitutional guarantee of such freedoms and liberty is not
meant to be abused and misused so as to endanger and
threaten the very foundation of the pattern of our free
society in which the guaranteed democratic freedoms and
personal liberty are designed to grow and flourish. ’Me
larger interests of our multireligious nation as a whole and
the cause of preserving and securing to every person the
guaranteed freedoms peremptorily demand reasonable
restrictions on the prejudicial activities of individuals
which undoubtedly jeopardise the rightful freedoms of the
rest of the society. These restrictions within the
constitutional limits have to be truly effective. If the
detaining authority is of opinion on grounds which are
germane and relevant, that it is necessary to detain a
person from acting prejudicially as contemplated by s. 3 of
the Act then it is not for this Court to consider
objectively how imminent is the likelihood ,of the detenu
indulging in these activities. This submission is thus
unacceptable.
The next point urged is that the petitioner had been served
with the order of detention dated June 25, 1972 when he was
in jail and that such service is invalid rendering the
petitioners detention void. This submission is generally
unacceptable. There is no legal bar in serving an order of
detention on a person who is in jail custody if he is likely
to be released soon thereafter and there is relevant
material on which the detaining authority is satisfied that
if free, the person concerned is likely to indulge in
activities prejudicial to the security of the State or
maintenance of public order. ’The decision in Makhan Singh
Tarsikka v. State of Punjab(1) does not lay down the broad
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proposition canvassed. In that case which dealt with the
Defence of India Rules it was observed that r. 30(1) (b) of
these Rules postulates an order only where it is shown that
but for the imposition of the detention, the person
concerned would be able to carry out prejudicial activity
,of the character specified in r. 30(1). On plain
construction of that sub-rule it was held that an order
permitted by it could be served on a person who would be
free otherwise to carry out his prejudicial activities and
such a freedom could not be predicated ,of Makhan Singh
Tarsikka, petitioner in that case. It is noteworthy that
the Court after referring with approval to its earlier
(1) A.I.R. 964 S.6.1120.
275
decision in Rameshwar Shaw v. District Magistrate,
Burdwan(1) observed :
"Besides when a person is in jail custody and
criminal proceedings are pending against him,
the appropriate authority may in a given case
take the view that the criminal proceedings
may end very soon and may terminate in his
acquittal. In such a case it would be open to
the appropriate authority to make an order of
detention if the requisite conditions of the
rule or the section are specified and served
on the person concerned if and after he is
acquitted in the said criminal proceedings".
No doubt, this decision does suggest that the order of
detention can be served on the person concerned if and after
he is acquitted in the said criminal proceedings but in our
view merely because the person concerned has been served
while in custody when it is expected that he would soon be
released that service cannot invalidate the order of
detention. The real hurdle in making an order of detention
against a person already in custody is based on the view
that is futile to keep a person in dual custody under two
different orders but this objection cannot hold good if the
earlier custody is without doubt likely to cease very soon
and the detention order is made merely with the object of
rendering it operative when the previous custody is about to
cease. It has also been pointed out that the grounds relate
to a period more than a year prior to the order of
detention. This according to the submission also renders
the order mala fide. In our opinion, this contention is
without merit. It has to be borne, in mind that it is
always the past conduct, activities or the antecedent
history of a person which the detaining authority takes into
account in making a detention order. No doubt the past
conduct, activities or antecedent history should ordinarily
be proximate, in point of time and should have a rational
connection with the conclusion that the detention of the
person is necessary but it is for the detaining authority
who has to arrive at a subjective satisfaction in consi-
dering the past activities and coming to his conclusion if
on the the basis of those activities he is satisfied that
the activities of the person concerned are such that he is
likely to indulge in prejudicial activities necessitating
his detention. As observed in Ujjagar Singh v. State of
Punjab(2) it is largely from prior events or past conduct
and antecedent history of a person showing tendencies or
inclinations of a person concerned that an inference can be
drawn whether he is likely even in the future to act in a
manner prejudicial to the public order. If the authority is
satisfied that in view of the past conduct of the person
there is need for deten-
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(1) [1964] 4 S.C.R. 921.
(2) [1952] S.C.R. 757.
276
tion then it could not be said that the order of detention
is not justified.
The next point raised on behalf of the petitioner is that
the earlier order of detention was either revoked or had
expired with the result that unless the present detention
pursuant to the order dated June 25, 1972 is passed on fresh
facts arising after the expiry or revocation of the earlier
order it must be held to be invalid. In support of this
submission reliance has been placed on S. 14 of the Act
which reads
14 (1) Without prejudice to the provisions of
section 21 of the General Clauses Act, 1897 a
detention order may, at any time, be revoked
or modified-
(a) notwithstanding that the order has been
made by an officer mentioned in sub-section
(2) of section 3 by the State, Government to
which that officer is subordinate or by the
Central Government.
(b) notwithstanding that the order has been
made by a State Government, by the Central
Government.
(2) The revocation or expiry of a detention
order shall not bar the making of a fresh
detention order under section 3 against the
same person in any case where fresh facts have
arisen after the date of revocation or expiry
on which the Central Government or a State
Government or an officer, as the case may be,
is satisfied that such an order should be
made".
Support has also been sought from Hadibandgu Das v. The Dis-
trict_Magistrate, Cuttack(1) which, was a case under the
Preventive Detention Act (IV of 1950). The language of S.
13(2) of that Act is identical with that of S. 14(2)
reproduced above. This decision was followed in Kshetra
Gogoi v. State of Assam(2) also a case under Act 4 of 1950.
In our opinion, this submission does possess merit and
deserves to be accepted. Section 14 speaks of revocation or
expiry of a detention order. The principle underlying this
section has, its roots in the vital importance attached to
the fundamental right of personal liberty guaranteed by our
Constitution. The Act fixes the maximum period of detention
to be 12 months from the date of the detention with the
proviso that the appropriate Government can revoke or modify
the detention order at any earlier time : S. 13. It is to
effectuate this restriction on the maximum period and to
ensure that it is not rendered nugatory or ineffective by
resorting to the camouflage of
(1) [1969] 1 S.C.R. 227. (2) [1970] 2 S.C.R. 517.
277
making a fresh order operative soon after the expiry of the
period of detention, as also to minimise resort to detention
orders that s. 14 restricts the detention of a person on
given set of facts to the, original order and does not
permit a fresh order to be made on the same grounds which
were in existence when the original order was made. The
power of preventive detention being an extraordinary power
intended to be exercised only in extraordinary emergent
circumstances the legislative scheme of ss. 13 and 14 of the
Act suggests that the detaining authority is expected to
know and to take into account all the existing grounds and
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make one order of detention which must not go beyond the
maximum period fixed. In the present case it is not urged
and indeed it is not possible to urge that after the actual
expiry of the original order of detention made by the
District Magistrate which could only last for 12 days in the
absence of its approval by the State Government, any fresh
facts could arise for sustaining the fresh order of
detention. The submission on behalf of the State that the
petitioner’s activities are so highly communal and prone to
encourage violent communal activities that it was considered
absolutely necessary to detain him in the interest of
security of the State and maintenance of public order cannot
prevail in face of the statutory restrictions and the
guaranteed constitutional right which is available to all
persons. The rule of law reigns supreme in this Republic
and no person on the soil of free India can be deprived of
his personal liberty without the authority of law. As
observed by this Court in Manu Bhushan Roy Prodhan v. State
of West Bengal (1) :
"... The Act encroaches on the highly
cherished right of personal liberty by
conferring on the executive extraordinary
power to detain persons without trial by
coming to subjective decisions. The detaining
authority in exercising this power must act
strictly within the limitations this Act
places on its power so that the guarantee of
personal liberty is not imperilled beyond what
the Constitution and the law strictly provide.
The limited right of redress conferred on the
detenu under the law deserves to be construed
with permissible liberality with the
provisions of the Act and the constitutional
guarantee."
On behalf of the respondent reference was also made to
Sampat Prakash v. State of Jammu & Kashmir (2) dealing with
detention under J. & K. Preventive Detention Act (J. & K.
Act 13 of 1964). Though in that Act there is a similar
provision [s. 14(2) of that Act] in the judgment there is no
reference to that section and it appears that no question
similar to the one- raised"
(1) W.I. No. 252 of 1972 decided on October 31, 1972.
(2) [1969] 3 S.C.R. 574.
278
before us was urged and adjudicated upon there. We have,
therefore, no option but to order the petitioner’s release
which we did ,on December 20, 1972. As the detention order
is being quashed on this ground we do not consider it
necessary to express. any opinion on the point that the
detention order is vitiated because some of the grounds on
which it is based, though not of unessential nature, are
vague.
Writ Petition No. 470 of 1972
Abdul Bari Kairanvi, petitioner in this writ petition, an
associate of Masood Alam (Petitioner in W.P. No. 469 of
1972) both in the Youth Majlis and Muslim Majlis, was
arrested on June 3, 1972 when he had organised in the City
of Aligarh a procession in defiance of the order issued
under S. 144, Cr. P.C. The general ,atmosphere of communal
tension prevailing in that city ultimately culminated in the
unfortunate communal riots on June 5, 1972. The arrest was
made under S. 188, I.P.C. and he was actually produced
before the Additional District Magistrate on the very day of
his arrest. On June 14, 1972 an order was made by the
District Magistrate for the petitioner’s detention under s.
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3 (1) (a) (i) and (ii) of the Act as amended by the Defence
of India Act 42 of 1971. The grounds of his detention which
were duly served on him under s. 8 of the Act read as under
:-
"1. That you are a member of the Executive of
the Muslim Majlis. You are also an active
member of Youth Majlis. The Youth Majlis is
being trained in the use of lathis, swords and
knives as a fully militant Organisation. You
contribute and raise funds to illegally arm
the Organisation. You visited Pakistan in
November, 1971 for arranging the transfer of
funds collected by Shri Masood Alam in
Pakistan to Aligarh for use by Youth Majlis
for training volunteers in the use of arms
and knives etc. You collected Rs. 700 for
Youth Majlis from Varanasi, Pratapgarh and
other places.
2.That you have extra territorial
loyalties and are therefore a threat to
security of India which is evident from the
following instances :-
(a) That you on 1-4-1971 listened to
Pakistan Radio and propagated Pak policy
towards Bangla Desh among the Muslims. You
also propagated that India engineered the
trouble.
(b) On 19-10-71 you participated in private
meeting of commanders of Youth Majlis wherein
you delivered a short speech that India and
Pakistan army were facing each other on the
border and
279
there was a great panic on the Indian side of
the border. You also advised the commanders
of the Youth Majlis to remain vigilant and
prepared for any situation that might develop
as a result of clash between India and
Pakistan forces. You criticised India for
allegedly meddling into the private affairs of
Pakistan. You pointed out to them that
Bengalees had been taught a lesson and the
Hindus in India would also share a similar
fate if Pakistan forces invaded. You accused
police and army of favouring Hindus and
stressed upon the commanders of Youth Majlis
to remain prepared.
(c) That you visited Pakistan in November,
1971 and returned from there on 30-11-1971 and
propagated that concentration of Pak army in
Lahore sector was quite heavy and that real
war would be fought in the sector.
(d) That you on 10-12-1971 briefed
volunteers of Youth Majlis that local Jan
Sangh workers were trying to tease the Muslims
by making unbecoming remarks against Pakistan.
3.That you have been exciting communal
feelings among the Muslims in India and
contributing to the communal disturbances in
the Aligarh City which is, evident from the
following instances :-
(a) That you on 15-10-71 attended the
Executive Committee meeting of Youth Majlis at
Jama Masjid Upor Kot, Aligarh where you
demanded that A.M.U. (Amendment) Bill should
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guarantee minority character of the
University.
(b) That you on 10-3-1972 in your speech in
a gathering of about one thousand Muslims at
Jama Masjid in Upor Kot Aligarh City alleged
that the enemies of Islam had a tradition to
make efforts to wipe out Islamic religion and
culture and at the present time also these
enemies of Islam were trying to become
aggressive. You warned that in case the
Muslims culture was wiped out the Muslims will
also be exterminated. You alleged that there
was systematic attempt to abolish Urdu. You
exhorted the Muslims to be united and firm.
(c) That on 19-5-1972 after a meeting at
Jama Masjid Upor Kot, Aligarh you distributed
a
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pamphlet captioned "Muslim University ki mot
ka Akhiri marhela. Ek Jan aur ek Awazbankar
usko bachyiye" issued in your name and the
names of Dr. Ahsan Ahmad and others. In the
meeting in your short speech you pointed out
that action, if delayed, would fail to achieve
any result even by any amount of sacrifice of
bloodshed. You also remarked "Hamari kom
hamesha se talwar key saye me pali hai" and as
such no sacrifice was too grave for this
occasion.
(d) That on 25-5-72 along with Dr. Ahsan
Ahmad attended a meeting of about 25 persons
at the residence of Abdul Jalil where Dr.
Ahsan Ahmad briefed the participants on the
agitation, formation of action Committee and
collection of funds in connection with the
agitation against A.M.U. (Amendment) Bill,
1972.
4. In view of the above-mentioned grounds I
am satisfied that you are likely to act in a
manner prejudicial to the security of India,
security of State and maintenance of public
order and with a view to preventing you from
acting in a manner prejudicial to the security
of India, security of State and maintenance of
public order it is necessary to detain you."
His detention was duly reported to the State Government on
June 18, 1972 and the State Government gave its approval on
June 25, 1972 which was duly reported to the, Government of
India on .June 29, 1972. His case was sent to the Advisory
Board on July 13, 1972 and the Board conveyed its decision
on August 18/21, 1972. His detention was confirmed on
August 30, 1972. The petitioner had made his representation
on July 15/24, 1972 through the District Magistrate who
forwarded it to the Government on July 29, 1972. The
Government considered the representation on August 2, 1972
and the decision of the Government ,was duly conveyed to him
on August 5, 1972.
According to the petitioner’s counsel Mr. Bashir Ahmed, the
grounds on which the petitioner’s detention has been ordered
are irrelevant and, therefore, the detention is void.
Emphasis is laid ,on the submission that the Youth Majlis
and the Muslim Majlis are both organisations which do not
advocate communal conflict ,or disharmony and the object of
both of them is social service ,of the society. It is added
that the Youth Majlis is a purely social Organisation which
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is dedicated to the cause of the oppressed and the depressed
and its membership is open to all persons irrespective of
their community or religious creed. In support of this
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contention the counsel sought to refer to the printed
constitution of the Organisation in Urdu which was not
permfitted, not being on the record and not being relevant
to the limited scope of enquiry in the present proceedings.
In our opinion none of the grounds on which the petitioner’s
detention has been ordered can be said to be irrelevant.
The facts stated in the grounds have to be accepted as
correct and it is not open to this Court to enquiry into
their truth like a court of appeal. Writ proceedings cannot
be treated as an appeal in disguise. And then it has to be
borne in mind that it was in November, 1971 that the
petitioner is said to have gone to Pakistan (it is asserted
in the grounds that he visited Pakistan in November, 1971,
and collected funds in that country for the purpose of
carrying on the activities of the Youth Majlis in India),
and he returned on November 30, 1971, just three days before
the actual war between India and Pakistan began. Judicial
notice under s. 57 of the Indian Evidence Act can be taken
of the fact that the war between India and Pakistan actually
began on December 3, 1971 lasting for about a fortnight.
The petitioner has admitted his visit to Pakistan in
November, 1971, the reason given by him being that he had
gone there to, see his ailing relations without mentioning
either their names and addresses or the relationship.
According to the grounds, the. petitioner has extra
territorial loyalties manifested by his anti Indian and pro-
Pakistan activities and also by inciting communal feelings
amongst the Muslims during the period of tension and
conflict between India and Pakistan on the question of
Bangla Desh. The grounds further disclose, inter alia, (i)
that the Youth Majlis engages in training Muslims in India
in the use of lathis, swords and knives, and (ii) that the
petitioner advised the commanders of the Youth Majlis in
October, 1971 to be vigilant and remain prepared for any
situation that might develop as a result of clash between
India and Pakistan forces, at the same time suggesting
invasion of India by Pakistan forces. An attempt has
undoubtedly been made on behalf of the petitioner to show
that the grounds on which the District Magistrate felt
satisfied are nonexistent but as observed earlier it is not
open to this Court to review and over-ride the subjective
opinion of the District Magistrate by going into the truth
or otherwise of the facts accented by him. The facts
contained in the grounds reproduced earlier seem to us to be
clearly relevant for the purpose of forming an opinion that
they endanger both maintenance of public order and security
of the State. It is undeniable that hostility amongst the
citizens founded on differences in religious faiths Is a
deadly poison for healthy existence and progress of a
secular, egalitarian society like ours. And when violence
is advocated and injected in such ’hostility, it is idle to
suggest that such activities cannot fall within the mischief
designed to be Prevented by the Act. In our country
patriotism is not communal or religious and the Constitution
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guarantees equal freedom to all religious faiths without
recognising the superior status of any particular religion.
There is absolutely no discrimination on the basis of
religion and indeed in this Republic every citizen
irrespective of his religious faith can aspire to the
highest office, if otherwise qualified. Here people
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professing numerous different religious faiths and
ideologies live in perfect harmony with equal rights
guaranteed by the Constitution. Articles 25 to 28 and Art.
30 in Part III accord to the Right to Freedom of Religion
and the Right of Minorities to Establish and Administer
Educational Institutions, the status of fundamental rights
which can be enforced in the highest courts in this country
by appropriate means. Whenever, therefore, an attempt is
made to disturb the peaceful, tolerant and harmonious life
of the society by appealing to or inciting and inflaming
religious passions and prejudices and by fanning morbid
fanaticism it must necessarily tend to disturb the even
tempo of the life of the society as a whole thereby
prejudicially threatening the maintenance of public order.
When such a climate in communal disharmony is engendered for
stimulating anti-Indian and pro-Pakistan feelings during the
period of extreme tension between the two countries then it
must also tend to seriously prejudice the maintenance of
security of the State. Our attention has been drawn to the
pamphlet Annexure A to the writ petition for the purpose of
fortifying the argument that the agitation with respect to
the Muslim University at Aligarh in which ,the petitioner
had undeniably taken part was a non-violent movement. We do
not think- it is possible on the basis of this document to
decline to accept the opinion of the District Magistrate who
had sufficient material about the activities of the
petitioner and of the organisations to which he himself
professes to belong. This pamphlet which merely announced a
meeting to be held on May 22, 1972 is, therefore, of little
consequence.
The contention that the petitioner is a Muslim theologist
highly qualified in Muslim theology, assuming it to be true,
is also unhelpful to the petitioner as the impugned order is
made on the basis of his activities which are considered
clearly prejudicial to ,the maintenance of public order and
security of State. His learning as a theologist is wholly
immaterial. It neither places him above the law nor does it
displace or detract from the opinion of the District
Magistrate with respect to his activities and their effect.
On the contrary it has to be borne in mind that when a
person professing to be learned in religious theology
encourages defiance of law in the name of religion then
ignorant and credulous people are more likely to be misled
and swayed by religious passions and sentiments. Such
activities naturally have greater potentiality for
prejudicially threatening the maintenance of public order.
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According to the writ petition the petitioner is an active
member of the Muslim Majlis and also a member of the Youth
Majlis. He was arrested while defying the order promulgated
under s. 144, Cr. P.C. This had been preceded by the various
Prejudicial activities in the month of May, 1972 as stated
in the grounds of detention and was followed two days later
by communal clashes. This agitation was carried an in
connection with a bill relating to the Aligarh Muslim
University ignoring that the legal position in respect of
this University had been authoritatively settled by this
Court as far back as October, 1967 in S. Azeez Basha v.
Union of India(’;). These activities clearly bring the
petitioner’s case within s. 3 of the Act, being calculated
to incite communal violence.
It has then been contended that some of the grounds of
detention conveyed to the petitioner are vague and,
therefore, the order of detention is liable to be struck
down as invalid. Reference has in this connection been made
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to the last two lines of ground no. 1 relating to the
collection of Rs. 700/ for Youth Majlis and to grounds nos.
2 and 3. The argument is wholly misconceived. If ,the last
two lines are read, as they should be, along with the
remaining contents of ground no. 1 it cannot be said that
the petitioner was unable to tender his explanation with
respect to the allegation contained therein. Quite clearly,
the exact point of time and the people from whom small
amounts were collected could not possibly be stated with
precision. Grounds nos. 2 and 3, as is clear, contain
precise details in the various clauses enumerated therein..
According to ground no. 2 the petitioner has extra-
territorial loyalties and, therefore, he is a threat to
security of India and this conclusion is arrived at on the
basis of the instances stated in cls. (a) to (d) which are
precise and definite. Similarly, ground no. 3 says that the
petitioner has been exciting communal feelings among the
Muslims in India and contributing to communal disturbances
in Aligarh city and this conclusion is based on instances
stated in cls. (a) to (d) which are precise and definite.
lie instances. under both these grounds are relevant and
germane. to the object which is sought to be achieved by s.
3 of the Act for the purpose of detaining persons who are
likely to act in a manner prejudicial to the security of the
State or maintenance of public order. The
(1)[1068] 1 S.C.R. 833.
3-L796Sup.C.I/73
284
decisions, relied upon on behalf of the petitioner reported
in Dwarka Dass Bhatia v. The State of Jammu and Kashmir(1)
and Pushkar Mukherjee & Ors. v. The State of West Bengal (2)
are. on the facts and circumstance of this, case of no
assistance to him.
This writ petition accordingly fails and is dismissed.
S.B.W. Petition dismissed.
(1) [1956] S.C.R. 948. (2) [1969] 2 S.C.R. 635.
285