Full Judgment Text
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PETITIONER:
P.L. LAKHANPAL
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
21/09/1966
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
MITTER, G.K.
CITATION:
1967 AIR 908 1967 SCR (1) 434
CITATOR INFO :
C 1967 SC1507 (3)
RF 1973 SC1425 (18)
D 1988 SC1459 (15)
R 1990 SC 176 (32)
ACT:
Defence of India Rules 1962, rr. 30(1)(b) and 3OA(9)-Scope
of.
HEADNOTE:
The petitioner who was the editor of a newspaper was
detained by and order of the Central Government under r.
30(1)(b) of the Defence of India Rules, 1962, and the
detention was continued by another order of the Central
Government passed six months later, under r. 3OA(9). The
first order directed the petitioner’s detention with a view
to preventing him from acting in any manner prejudicial to
the defence of India, civil defence, public safety and the
maintenance-of public order, but the order continuing the
detention set out only the defence of India and civil
defence. The petitioner challenged the second order of the
following grounds:-(i)the detention was punitive and not
preventive, because his writings in is paper were the
grounds of his original detention but that the paper had
since become defunct; (ii) the two additional grounds given
in the original order and omitted in the latter order must
be held to have been non-existent at the time of the
original order, and therefore, the original order based on
such non-existent grounds was illegal, and could not be
validly continued under r. 3OA(9); (iii) even if the
Government was competent to continue the detention, the
validity of the decision of the Government to continue the
detention depended upon the existence of relevant
circumstances which would necessitate the- continuation and
such circumstances were demonstrable; and (iv) the Minister
who passed the second order should have filed a counter
affidavit showing that he applied his mind to the material
before he passed the order continuing the detention.
HELD : (i) Assuming that the petitioners writings in his
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paper were relied on for the purpose of passing the original
order, they were not the only materials on which the
original order and the order continuing the detention were
based. The authorities had taken into consideration the
over-all picture of all his anti-Indian and pro-Pakistani
activities. Therefore, the fact that his paper had since
become defunct would make no difference because the
jurisdiction to detain is not in respect of a mischief
already committed but in anticipation. that the person
concerned may in future act prejudicially. [436 H; 437 A-B;
439 C-D]
(ii) The decision to continue the detention order was within
the scope of r. 30A and was therefore sustainable. [446 A-B]
Rule 30-A provides for a review of the order of detention,
the procedure therefor,, the different reviewing
authorities, the period within which such review has to be
made and the obligation to decide whether the detention
should be continued or cancelled after taking into account
all the circumstances of the case. Sub-rule (9) provides
that where a detention order is passed, by the Central or a
State Government such order shall be reviewed at intervals
of not more than six months by the Government which made
the-order and upon such review decide whether to continue or
cancel the order. The object of the review is to decide
whether there is a necessity to continue the detention order
or not in
434
the fight of the facts and circumstances including any
development that has taken place in the meantime. If the
reviewing authority finds that such a development has taken
place in the sense that the reasons which led to the passing
of the original order no longer subsist or that some of them
do not subsist that is not to say that those reasons did not
exist at the time of passing the original order and that the
satisfaction was on grounds which did not then exist. There
is no analogy between the provisions of review in the
Defence of India Rules and in the Preventive Detention Act,
1950 and therefore, the decisions on that Act cannot be
availed of by the petitioner. [438 H; 439 B; 445 F-H; 446 A-
B]
(iii) The words used in r. 30(1) (b) and r. 30A are
satisfaction in one case, and decision after taking into
account all the circumstances of the case in the other.
Unlike r. 30(1)(b), the power to continue the detention
after review is not dependent on the solution of the
Government. Under r. 30A the Government is enjoined upon to
decide whether the detention should be continued or
cancelled. The substitution of decision instead of
satisfaction is an indication that the criterion for
continuing the detent on is the existence of those facts and
circumstances which necessitate it. The existence of such
facts which is the determinant for the exercise of the power
is demonstrable, and if they are shown not to exist the
decision would not be a decision within the meaning of r.
30A and would be amenable on that ground to challenge. The
counter affidavit of the Deputy Secretary, on record,
disclosed the anti-national activities of the petitioner and
that the decision under r. 30A that the petitioner had acted
and was likely to act in a manner prejudicial to the defence
of India and civil defence was arrived at by the Minister
after an examination of all the materials before him. So
long as the decision was arrived at on such materials, since
this Court does not sit in appeal against such a decision,
it would not ordinarily examine the adequacy or the truth of
those materials and would not interfere with the decision on
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the ground that if the Court had examined them it would have
come to a different conclusion. [440 C, 441 F-H; 446 F-G]
Sadhu Singh v. Delhi Administration, [1966] 1 S.C.R. 243
referred to.
(iv) It was not a case of a mala fide exercise of power or a
case of non-application of mind by the authority concerned.
Since no allegation,-, of malice or dishonesty have been
made in the petition personally against the Minister., his
omission to file a counter-affidavit, by itself, could not
be a ground to sustain the allegation of mala fides or non-
application of mind. [446 D-E]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 137 of 1966.
Petition under Art. 32 of the Constitution of India for a
writ in the nature of habeas corpus.
The petitioner appeared in person.
S. V. Gupte, Solicitor-General. R. H. Dhebar and B.R.G.K.
Achar, for the respondents.
The Judgment of the Court was delivered by
Shelat, J. The petitioner was detained by an order dated
December 10, 1965 under Rule 30(i)(b) of the Defence of
India Rules, 1962. The order inter alia stated:
"Whereas the Central Government is satisfied
that with a view to preventing Shri P. L.
Lakhanpal .... from acting
435
in any manner prejudicial to tile defence of
India, and civil defence, public safety and
the maintenance of public order, it is
necessary that he should be detained."
On December 24, 1965 he filed a writ petition under Art. 32
of the Constitution in this Court for a writ of habeas
corpus challenging his detention inter alia on the grounds
that Rule 30(i)(b) was ultra vires s. 3(2)(15)(i) of the
Defence of India Act, 1962, that Rule 23 of the Defence of
India (Delhi Detenues) Rules, 1964 gave him a right to make
a representation by providing a review of the said detention
order and also by providing that a detenu will be allowed to
interview a legal practitioner for the purpose of drafting
his representation and that his said right was violated by
his being prevented from making such a representation, that
the said order violated s. 44 inasmuch as though he was an
editor of a newspaper action against him was not taken as
such editor as provided by that section and certain other
provisions in the Act resulting in the invalidity of the
said order and that the said order was mala fide as the
Union Home Minister had failed to file an affidavit swearing
as to his satisfaction although the petition contained
specific allegations denying such satisfaction. That
petition(1) was heard and was dismissed on April 19, 1966
rejecting the aforesaid contentions. On June 11, 1966 the
Central Government passed an order continuing the said
detention order under r. 3OA(9). But whereas the order of
December 10, 1965 directed the petitioner’s detention with a
view to preventing him from acting in any manner prejudicial
to the defence of India and civil defence, public safety and
the maintenance of public order the said order continuing
his detention set out only the defence of India and civil
defence. Likewise, though the original order described the
petitioner as the son of the late Shri Diwan Chand Sharma,
editor of the Evening View residing at etc., the order of
June 11, 1966 simply described him as the son of the late
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Shri Diwan Chand Sharma. This difference probably was and
had to be made as by reason of his detention he was no
longer editing the said newspaper and was no longer residing
at the address set out in the original order.
In the present petition the petitioner challenges both the
orders on the following grounds:-
(i) that there is no valid order of detention under any of
the provisions of the Act or the Rules made thereunder;
(ii) that his continued detention under the order of June 1
1, 1966 was in contravention of Rule 23 of the Defence of
India (Delhi Detenues) Rules, 1964 inasmuch as he was denied
the right of representation by a letter of the Deputy
Secretary in the Ministry of’ Home Affairs dated December
27, 1965;
(1) W.P. 47 of 1966 decided on April 19, 1966.
436
(iii) that the detention was punitive and not preventive as
the principal ground of his detention viz., his writings in
his said paper had ceased to be the ground since the said
paper had become defunct, the requisite declaration in
respect thereof having lapsed;
(iv) that the said detention order contravened section 44 of
the Act; and
(v) that the orders of detention and continuation were
illegal as they were mala, fide and made without any
application of mind by the Home Minister; consequently there
was no satisfaction as required by s. 3 and r. 30(i)(b).
Contentions 2, 4 and part of Contention 5 in so far as they
concern the original order of detention no longer survive as
they were disposed of by the decision in W.P. 47 of 1966.
The petitioner therefore cannot be permitted to reagitate
the same questions, it not being his case that any new
circumstances have arisen justifying their reagitation.
Contention No. 3 also cannot be sustained because the
affidavit clearly shows that the detention was ordered not
only because of his writings in the said newspaper but that
the said two orders were made after taking into
consideration the over-all picture of his activities.
Annexure D to the petition is the affidavit of B. S.
Raghavan, Deputy Secretary in the Ministry of Home Affairs,
filed in the previous petition. In that affidavit it was
clearly stated that the activities of the petitioner "do
conclusively prove that the petitioner is a pro-Pakistani
and anti-Indian"; that "there was material before the Union
Home Minister about the prejudicial activities of the
petitioner and he was satisfied that it was necessary to
detail the petitioner" and that "it was the anti-national
activities of the petitioner that was responsible for his
detention." That affidavit also stated that "the
petitioner’s activities were sufficient in themselves to
enable the Central Government to come to the conclusion that
if the petitioner was not detained he was likely to act in a
manner prejudicial to the defence of India, civil defence,
public safety and the maintenance of public order." In the
return filed in the present petition also the same officer
has once again stated that "he (the petitioner) is a pro-
Pakistani agitator acting against the integrity and the
solidarity of India. The history of the activities of the
petitioner shows that he is a pro-Pakistani propagandist and
seeks to undermine the unity and integrity of India and has
close contacts and associations with elements which seek to
encourage force and violence in relation to Kashmir. The
petitioner has been in constant touch with the
representatives of foreign powers in India, inimical towards
India." Para 4 of the return also states that he "is a paid
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pro-Pakistani and anti-Indian". It is true that the
deponent in his counter-affidavit in the previous petition
had relied on certain extracts culled out from the
petitioner’s writings but those extracts as stated by the
deponent were in answer
437
to the petitioner’s claim that he was a journalist and an
editor. But assuming that the petitioner’s writings were
relied on for the purpose of passing the original order, it
is manifest that they were not the only materials on which
the order was based and the authorities had taken into
consideration the over-all picture of all his activities.
If that be so the fact that his paper has now become defunct
would make no difference and it cannot consequently be held
that the order is punitive and not preventive. This leaves
the first and part of his fifth contention for
consideration.
The petitioners argument on the first contention was that
the order dated June 11, 1966 being based only on the ground
of defence of India and civil defence the other grounds
given in the original order- must be held to be non-existent
and that the validity of the original order being dependent
upon the satisfaction. of the Central Government it is
impossible to predicate whether the said order was not made
on the basis of the non-existent grounds. Therefore he
argued there was no valid satisfaction and the order founded
on such invalid satisfaction could not be continued under r.
3OA(9); (2) that even if the Central Government was
competent to continue the petitioner’s detention the
validity of the order of the 11th June, 1966 not being
determinative on the subjective satisfaction but upon a
decision of the Government the grounds and the materials on
which such decision was made must exist and the Government
was therefore bound to establish that there were materials
before it upon which its said decision was based.
In order to appreciate these contentions it will be
necessary to ascertain the true scope of r. 30A and the
scheme of the said Rules. Section 3(1) of the Act empowers
in generality the Central Government to make such Rules as
appear to be necessary or expedient for securing the defence
of India and civil defence etc. Sub-section 2 provides that
such Rules may provide for all or any of the matters therein
set out. Clause (15)(i) empowers the Central Government to
make rules providing for detention of any person (a) whom
the authority empowered by the Rule to detain suspects on
grounds appearing to that authority to be reasonable of
having acted, acting or being about to act or being likely
to act in any manner prejudicial to the defence of India and
civil defence etc., or lb) with respect to whom that
authority is satisfied that his detention is necessary for
the purpose of preventing him from acting in any such
prejudicial manner. Clause 15(i) and the other Rules
contemplate and empower, besides the Central Government,
other authority to detain, such authority being not below
the rank of a District Magistrate. The jurisdiction of such
authority is conditioned under the first part on his
suspicion and under the second part on his satisfaction that
detention is necessary for purposes therein set out. The
suspicion, of course has to be on grounds appearing to that
authority to be
438
reasonable and the satisfaction under the second part is the
satisfaction of that authority that detention is necessary
to prevent the person in question from acting in any manner
prejudicial to the matters set out therein. Rule 30(1)(b)
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provides that the Central .or the State Government if it is
satisfied with respect to any particular person that it is
necessary so to do, may make an order directing that he be
detained. In Writ Petition 47 of 1966 filed by the
petitioner earlier this Court made a distinction between the
first and the second part of section 3(2)(15)(i) and held
that Rule 30(1)(b) was made under the second part of that
sub-clause and that consequently the only thing required was
that the authority must be satisfied that detention was
necessary for purposes mentioned therein. It is therefore
clear that the only condition precedent for the exercise of
power thereunder is the satisfaction of the Central or the
State Government that it is necessary to detain the person
,concerned to prevent him from acting in a manner
prejudicial to the several matters or any one or more of
them therein set out. Rule 30A was introduced in the Rules
by notification G.S.R. 183 dated December 28, 1962. It
defines a detention order as meaning one passed under r.
30(1)(b) and provides for a review in accordance with the
provisions therein contained. Sub-rule 3 provides that
where a detention order is made by the Central or a State
Government or an Administrator a review is to be made by the
same authority. Under sub-rule 4, if a detention order is
passed by an officer authorised by a State Government the
reviewing authority would consist of two officers specified
by that Government. If all order is made by an officer
authorised by the Administrator the reviewing authority is
the Administrator. Under sub-rule 5, if ,a detention order
is made by an authorised officer he has to forthwith report
the fact to the reviewing authority. Under sub-rule 6 on
such report the reviewing authority after taking into
account all ’the circumstances of the case has to recommend
to the State Government either to confirm or cancel the
order and thereupon that Government may confirm or cancel
the order as it may deem fit. Where the reviewing authority
is the Administrator he may either confirm or cancel the
order after taking into account all the circumstances of the
case. Sub-rule 7 provides that every detention order passed
by an authorised officer and confirmed by the State
Government would be reviewed by the reviewing authority at
intervals of not more than six months and in the light of
the recommendation of that authority the State Government
shall decide whether the order shall be continued or
cancelled. A similar provision in respect of an order
passed by an officer authorised by an Administrator is
contained in sub-rule 8. Sub-rule 9 with which we are
immediately concerned provides that where a detention order
is passed by the Central or a State Government such order
shall be reviewed at the aforesaid intervals by the Govern-
ment which made it and upon such review the Government shall
439
decide whether the order should be continued or
cancelled.Thus where the detention is continued after the
first six months, a review by the prescribed authority is
obligatory and a decision of the Central or the State
Government or the Administrator as the case may be is the
condition precedent for continued detention. Rule 30A thus
provides for a review, the procedure therefor, the different
reviewing authorities, the period within which such review
has to be made and the obligation to decide whether the
detention should be continued or cancelled after taking into
account all the circumstances of the case.
In the present case we are concerned not with a detention
order passed by an authorised officer but by the Central
Government. In the case of such an order made under rule
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30(1)(b) the determinative factor is the satisfaction in
regard to a particular person that it is necessary to detain
him with a view to prevent him from acting prejudicially to
the matters or any one or more of them therein set out. The
jurisdiction to detain is not in respect of a mischief
already committed but in anticipation that the person
concerned may in future act prejudicially. Such
satisfaction is exclusively that of the detaining authority
and it is inherent in the power that it is and has to be the
subjective satisfaction. Presumably an emergency having
been declared by the President the legislature granted such
a drastic and unique power enabling the Government to act
quickly to prevent the person concerned from doing anything
deterimental to the said matters. In such a case it must
have been presumed by the legislature that a judicial
process under normal laws may be either inept or
inappropriate. Thus the condition precedent to the exercise
of jurisdiction to detain under r. 30(1)(b) is only the
subjective satisfaction that it is necessary to detain the
person concerned. (cf. Rammanohar Lohia v. The State of
Bihar).(1)
Considering, however, the fact that the notification
inducting in the Rules rule 30A providing for a review was
issued in December 1962 it would appear that the necessity
for ensuring that a person is not improperly detained or is
not unnecessarily continued in detention was felt and that
must have been the reason why a review was provided for
immediately after the detention in the case where an
authorised officer has passed the order and in the case of
an order passed by the Government, Central or State as the
case may be, by that Government at every interval of not
more than six months. It may be recalled that in the case
of an order by an officer it is incumbent upon him to
forthwith report to the reviewing authority whereupon the
reviewing authority has to recommend to the State Government
whether to confirm or cancel the order. Thus a check on the
exercise of power by an authorised officer was considered
necessary. Though there is no such immediate review in
(1) [1966] 1 S.C.R. 709.
440
the case of an order passed by the Central or a State
Government, ,sub-rules 7, 8 and 9 of Rule 30A provide for a
review at intervals of not more than six months (a) by the
reviewing authority in the case of an order passed by an
officer and (b) by the Government in the case of an order
passed by the Government. The provision for review is again
a check preventing a person being unnecessarily, continued
in detention, and whether the reviewing authority is the
Government or the officers it is the Government which has to
decide whether the detention should be continued or
cancelled. ,and such decision is the condition precedent for
an order of continuation of detention. The difference in
the words used in Rule .30(1)(b) and Rule 30A viz.,
satisfaction in one case and decision after taking into
account all the circumstances of the case in the other
cannot be accidental but must be deliberate and purposeful.
The phraseology used in Rule 30A is not "in its opinion" or
is satisfied" or "has reason to believe" etc., as often used
in modern statutes and rules.
The question then is: what precisely does the word "decide"
in Rule 30A mean ? It is no doubt a popular and not a
technical word .According to its dictionary -meaning "to
decide" means "settle (question, issue, dispute) by giving
victory to one side; give judgment (between, for, in favour
of, against); bring, come, to a resolution" and "decision"
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means "settlement, (of question etc)., conclusion, formal
judgment, making up one’s mind, resolve, resoluteness,
decided character." As Fazl Ali J. in Province of Bombay v.
Advani(1) observed:
"The word’decision’ in common parlance is more
or less a neutral expression and it can be
used with reference to purely executive acts
as well as judicial orders. The mere fact
that an executive authority has to dec
ide some-
thing does not make the decision judicial. It
is the manner in which the decision has to be
arrived at which makes the difference and the
real test is: Is there any duty to decide
judicially?"
In that case the question was whether the decision of the
Bombay Government under s. 3 of the Bombay Land Requisition
Ordinance, 5 of 1947 that a property was required for a
public purpose was a quasi judicial act and a writ of
certiorari would lie against such a decision. The majority
held that it was an administrative act but it is noteworthy
that Mukherjea J. who differed along with Mahajan J. (as he
then was) was of the view that the question whether a public
purpose exists or not had to be determined under that
section by the Government of Bombay as there was a lis or a
controversy between the interest of the public on the one
hand and that of the individual who owned the property on
the other, and the deter-
(1) [1950] S.C.R. 621 at 642.
441
initiation of the Government was a judicial act such
determination being a collateral matter on which the
jurisdiction to requisition was founded and not a part of
the executive act of requisitioning. We are however not
called upon in the present case to decide whether the
function of review and the decision which may be made by the
Government is a judicial or a quasi judicial function or
not.Indeed,the petitioner has not raised any such question
whether the order of the 11th June 1966 was a judicial or a
quasi-judicial one. We do not therefore propose to examine
the relevant provisions of the Rules from that point of
view. The question raised by the petitioner before us is
whether the validity of the decision depends upon the
existence of relevant circumstances which would necessitate
the continuation of detention and whether such circumstances
on which it is founded are demonstrable. As tersely put by
Lord Atkin in his famous dissent in Liversidge v. Anderson
(1) is the decision one of a case of thinking that a person
has a broken ankle and not a case of his really having a
broken ankle or- as Mahajan J. (as he then was) put it in
Advani’s case(2 ) at p. 659 of the Report:-
"Similarly can it be said that s. 4
contemplates merely a vacancy in the mind of
the Government, not a vacancy in fact as a
real thing."
If the decision is to be founded on a mere subjective
satisfaction or opinion it would be in the former category
but if it is to be founded on a fact it has to fall in the
latter category and in that event it would have to be
regarded as one based on an objective test. It follows that
where the exercise of power is not conditioned on a mere
opinion or satisfaction but on the existence of a set of
facts or circumstances that power can be exercised where
they exist. The authority in such a case is required to
exercise the power in the manner and within the limits
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authorised by the legislature. The existence of such facts
which is the determinant for the exercise of the power is
demonstrable.
Unlike Rule 30(1)(b) the power to continue the detention
after review is not dependent on the satisfaction of the
Government. Rule 30A postulates that ordinarily detention
should not be for more than six months unless found
necessary. It is for that reason that under the Rules when
the period of six months expires the Government is enjoined
upon to decide whether it should be continued or cancelled.
Though the legislature has made the Government the exclusive
forum for such a decision, its decision has to be founded on
facts and circumstances which make the continuation
necessary in order to prevent the detenu acting in a manner
prejudicial to the matters set out therein.The substitution
of decision instead of satisfaction is a clear indication
that the criterion
(1) [1942] A.C. 206.
(2) [1950] S.C.R. 621.
442
for continuing the detention is the existence of those facts
and circumstances which necessitate it. It is not
unreasonable to think that the legislature decided to confer
power the exercise of which was made dependent upon the
subjective satisfaction at the initial stage but where
continuation of detent ion was concerned, it thought that
there should be different considerations. At that stage
there would be ample time and opportunity for the Government
to scrutinise the case fully and ascertain whether facts and
circumstances exist demanding continuation and therefore
deliberately used the word "decide" instead of the words "is
satisfied". Therefore where such circumstances do not exist
there would be no necessity for continuation and yet if the
Government decides to continue the detention,such a decision
would be beyond the scope of Rule 30A and would not be a
decision within the meaning of or under that rule.Cases may
arise where circumstances exist leading to the authority’s
satisfaction that a particular person should be detained but
those circumstances may not exist at the time when the
review is made. In the latter case it is impossible to say
that the Government can still decide to continue the
detention nor is it possible to say that it is the
Government’s opinion or satisfaction that such facts and
circumstances exist which is the criterion. The decision on
a review has to be arrived at from the facts and cir-
cumstances which actually subsisted at the time when the
original order was made in the light of subsequent
developments and not merely those existing at the time when
the order was made. In such a case the decision can be
challenged as one not within the scope of or under the rule
and therefore unauthorised or as one based on considerations
irrelevant to the power.
Our attention was however drawn to the decision in Sadhu
Singh v. Delhi Administration(1) where Shah J. sitting
singly during vacation has held that the order of detention
passed by the District Magistrate and its confirmation by
the Delhi Administration were acts pre-eminently executive,
subject to subjective satisfaction and therefore not subject
to a judicial review. He, however, added that even then the
court’s power is not excluded to investigate into compliance
with the procedural safeguards imposed by the statute or
into the existence of prescribed conditions precedent to the
exercise of power or into a plea that the order was made
mala fide or for a collateral purpose. The learned Judge
then proceeded to consider the plea that the review under r.
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30A(8) was a quasi judicial proceeding and that a review of
the facts in the light of subsequent developments, including
the change of views, if any, of the detenu since he was
detained cannot effectively be made unless he was afforded
an opportunity to make his representation and convince the
reviewing authority that the facts and circumstances which
may have justified the original
(1) [1966] 1 S.C.R. 243.
443
order did not continue to exist or in the context of changed
circumstances did not justify the continuation of the
detention. In ,repelling this plea, the learned Judge
observed:
"Making of an order of detention proceeds upon
the subjective satisfaction of the prescribed
authority in the light of circumstances placed
before him or coming to his knowledge, that it
is necessary to detain the person concerned
with a view to preventing him from
acting...... If that order is purely executive
and not open to review by the Court, a review
of those very circumstances on which the order
was made in the light of circumstances since
the date of that order cannot but be regarded
as an executive order. Satisfaction of the
authority under r. 30(1) proceeding upon facts
and circumstances which justifies him in
making an order of detention and the
satisfaction upon review of those very facts
and circumstances in the light of
circumstances which came into existence since
the order of detention are the result of an
executive determination and are not subject to
judicial review."
On this view he held that the review was not a judicial
function nor did the statute require the safeguard of a
judicial approach or the right of being heard. He also
negatived the plea that the word "decide" in r. 3OA(8) meant
that there was a lis observing as follows
"That only imports that the Administration
after reviewing the material circumstances has
to decide whether the detention of the detenu
should be continued or cancelled.
Undoubtedly, in reviewing the order of
detention, the Administrator would be taking
into account all the relevant circumstances
existing at the time when the order was made,
the subsequent developments which have a
bearing on the detention of the detenu and the
representation, if any, made by the detenu.
But the rule contemplates review of the
detention order and in the exercise of a power
to review a condition of a judicial approach
is not implied."
Shah J. in this decision was primarily dealing with the
question whether the function of review and a decision
following it is a judicial function and whether there is a
lis between the power of the Government to continue
detention on the one hand and the right of the detenu to be
released on the other As already stated that question does
not arise before us and we refrain from deciding, it. Though
he rejected that plea the learned Judge has yet said in
explicit terms that the reviewing authority has to consider
"the material circumstances " and then has to decide whether
the detention should be continued or not. He has also
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emphasised that M 15 sup. CI/66-15
444
the Administrator while reviewing has to take into account
the relevant circumstances" existing at the time when the
Original order was made and the subsequent developments
having "a bearing on the detention". The decision thus
presupposes that the Government or the Administrator, as the
case may be, cannot decide to continue the detention without
considering all the relevant circumstances which existed at
the time of the original order and those which exist at the
time when the authority decides to continue the detention.
While making the plea that the use of the word ’decide" in
r. 30A meant that there is a lis, it does not appear to have
been argued that assuming that the power to continue the
detention was ministerial the condition precedent to the
exercise of that power is not the subjective satisfaction
but the decision from the facts and circumstances and that
the validity of the exercise of that power is dependent on
the existence of facts and circumstances relevant to the
purpose set out in r. 30(1) and r. 30A. If they are shown
not to exist surely the decision would not be a decision
within the meaning of r. 30A and would be amenable on that
ground to a challenge.
The question then is, is the decision to continue the order
of detention one within the scope of r. 30A ? Relying on the
omission in the order of June 11, 1966 of the words "public
safety and the maintenance of public order" the petitioner
contended that it must be held that those two grounds never
existed and that since the exercise of power to detain
depended on the satisfaction of the Government it cannot be
predicated that the omitted grounds did not affect the
Government during the process of its satisfaction. He
relied on two decisions of this Court, (1) Baradwaj v. State
of Delhi(1) and (2) Shibban Lal v. State of U.P.(2) Both the
cases were under the Preventive Detention Act, IV of 1950.
In Baradwaj’s case(2) the question was not of a ground not
existing but of a ground being found to be vague and it was
held that even though the rest of the grounds were not
vague, the detention was not in accordance with the
procedure established by law and was therefore illegal. The
decision therefore turned on the question whether under Art.
22(5) of the Constitution the detenu had an opportunity ,of
effectively making a representation. In Shibbanlal’s
case(2) the Court held that where the Government itself
while confirming the detention in exercise of its power
under s. II admits that one of the two grounds mentioned in
the original order was unsubstantial or non-existent, to say
that the other ground which still remained was quite
sufficient to sustain the order would be to substitute an
objective judicial test for the subjective decision of the
,executive authority which was against the legislative
policy underlying the statute. In such cases, the position
would be the same .,as if one of the two grounds was
irrelevant for the purpose of the
(1) [1953] S.C.R.708 (2) A.I.R. 1964 S.C.179
445
Act or was wholly illusory and this would vitiate the
detention order as a whole. These decisions cannot help the
petitioner.In the first place the scheme of the Preventive
Detention Act is entirely different from the Act and the
Rules before us. Section 3 of that Act confers the power of
detention. Section 7 requires the detaining authority to
furnish grounds of detention to the detenu to make a
representation. Section 8 requires the setting up of
Advisory Boards. Section 9 requires reference of the order
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passed by the- authority to such Advisory Board together
with the representation, if any, made by the detenu. Under
section 10, the Board has to make a report to the Government
and the report would be whether there is sufficient cause
for detention or not. Under s. 11, the Government may
confirm the detention order and continue the detention where
the report is that there is sufficient cause. But where the
Board reports that there is no such sufficient cause, the
Government has to revoke the detention order. It is clear
from s. 9 and the sections following it that the Government
has to make the reference to the Board within 30 days from
the order and the Board has to find whether there is
sufficient cause for detention or not. The review by the
Board is thus almost contemporaneous. If therefore the
Board finds that certain grounds furnished to the detenu did
not in fact exist, it means that they did not exist at the
time when the authority made up its mind to pass the order.
It is for that reason that the courts have held that since
the order is based on subjective satisfaction, it is not
possible to say whether or not the grounds found not to have
existed affected the process of satisfaction of the autho-
rity or not and to say that those only which existed had
made up the satisfaction would be to substitute the court’s
objective test in place of the subjective satisfaction of
the detaining authority. The scheme of rules 30(1) and 30A
is totally different from that of the Preventive Detention
Act. Where an order is made under r. 30(1)(b), its review
is at intervals of periods of not more than six months. The
object of the review is to decide whether there is a
necessity to continue the detention order or not in the
light of the facts and circumstances including any
development that has taken place in the meantime. If the
reviewing authority finds that such a development has taken
place in the sense that the reasons which led to the passing
of the original order no longer subsist or that some of them
do not subsist, that is not to say that those reasons did
not exist at the time of passing the original order and
therefore the satisfaction was on grounds which did not then
exist. It is easy to visualise a case where the authority
is satisfied that an order of detention is necessary to
prevent a detenu from acting in a manner prejudicial to all
the objects set out in r. 30 (1). At the end of six months
the reviewing authority on the materials before it may come
to a decision that the detention is still necessary as the
detenu is likely to act in a manner prejudicial
446
to some but not all the matters. Provided such decision is
arrived at within the scope of r. 30A the decision to con-
tinue the detention order would be sustainable. There is
thus no analogy between the provisions of review in the two
Acts and therefore decisions on the Preventive Detention Act
cannot be availed of by the petitioner.
As regards the contention as to mala fides it will be
observed that the original order was passed by the Union
Home Minister while the order under r. 30A was passed by the
Minister of State of Home Affairs. The first part of the
contention has already been rejected by this Court in the
petitioner’s earlier Writ Petition and therefore cannot be
reagitated. The contention in regard to the second part was
that since the State Minister himself has not filed an
affidavit swearing to his decision and the affidavit on re-
cord is that of the Deputy Secretary there is nothing to
show that the Minister had arrived at a decision that there
were facts and circumstances necessitating the continuation
of the petitioner’s detention. The reasons given by the
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petitioner for this contention are in substance the same as
those urged in the earlier petition and which were rejected
by this Court then. Since no allegation of malice or
dishonesty have been made in the petition personally against
the Minister it is not possible to say that his omission to
file an affidavit in reply by itself would be any ground to
sustain the allegation of mala fides or non-application of
mind. The affidavit by the Deputy Secretary discloses that
the decision under r. 30A was arrived at by the Minister
after an examination of all the materials before him. The
affidavit also discloses the activities of the petitioner
and the conclusion arrived at by the Minister that the
petitioner had acted and was likely to act in a manner
prejudicial to the defence of India and civil defence. So
long as that decision was arrived at on materials, since
this Court does not sit in appeal against such a decision it
would not ordinarily examine the adequacy or the truth of
those materials and would not interfere with that decision
on the ground that if the Court had examined them it would
have come to a different conclusion. It is therefore not
possible to agree with the contention that this is a case of
a mala fide exercise of power or a case of non-application
of mind by the authority concerned.
For the reasons aforesaid the petition fails and is
dismissed.
V.P.S. Petition dismissed.
447