Full Judgment Text
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PETITIONER:
S. KRISHNAN AND OTHERS
Vs.
RESPONDENT:
THE STATE OF MADRAS(AND OTHER PETITIONS)UNION OF INDIA--Inte
DATE OF JUDGMENT:
07/05/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
1951 AIR 301 1951 SCR 621
CITATOR INFO :
F 1952 SC 181 (6,30)
F 1959 SC 609 (14)
R 1962 SC 945 (19)
RF 1967 SC1643 (14,237)
R 1970 SC 494 (13)
F 1972 SC1660 (7)
RF 1973 SC1461 (301,1919)
RF 1974 SC 396 (25)
R 1974 SC 613 (9,10,11,17,28,32,33,51)
R 1974 SC1336 (8)
R 1975 SC 863 (5)
E 1976 SC1207 (66)
RF 1977 SC1884 (23)
ACT:
Preventive Detention (Amendment) Act, 1951, ss. 9, 10,
11, 12--Indian Constitution, 1950, Arts. 22 (4) (a) & (b),
22 (7)--Detentions under earlier Act treated as detentions
under new Act and continued for more than one year--Omission
to fix maximum period--Infringement of fundamental
rights--Contravention of Constitution--Validity of amend-
ing Act--Temporary Statutes--Order of detentions --Validity
after expiry of Statute.
HEADNOTE:
The Preventive Detention (Amendment) Act of 1951 which
extended the operation of the Preventive Detention Act of
1950 for a period of one more year, that is, up to 1st
April, 1952, effected two material alterations by providing
(i) that a reference to an Advisory Board shall be made in
all cases within six weeks (s. 9); (ii) that every detention
order in force at the commencement of the new Act shall
continue in force and shall have effect as if had been made
under the Act as amended (s. 12). The petitioners, who were
On the date of the commencement of the amending Act in
detention in pursuance of orders made under s. 3 (1) (a)
(ii) of the Preventive Detention Act of 1950, and who but
for the amending Act would have been entitled to be released
under the earlier Act on the expiry of one year from the
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date of the order of detention, applied for habeas corpus
contending that ss. 9 and 12 of the amending Act which
enacted the above mentioned provisions contravened the
provisions of Art. 22 (4) (a) of the Constitution and were
consequently void under Art. 13(a) inasmuch as the combined
effect of these sections was to keep the petitioners in
detention for a period longer than three months without
reference to an Advisory Board, and also to keep them in
detention for a period of more than one year. The Act was
also attacked on the ground that it did not fix any maximum
period for detention:
Held, per KANIA C.J., PATANJALI SASTRI, MAHAJAN, S.R.
DAs and Bose JJ. :--that ss. 9 and 12 of the Preventive
Detention (Amendment) Act, 1951, did not contravene Art.. 22
(4) of the Constitution and were not void.
622
Per KANIA C.J., and PATANJALI SASTRI J.--The amending
Act could be regarded as a law made substantially in accord-
ance with sub-clauses (a) and (b) of cl. (7) of Art. 22, and
as such it satisfied the requirements of Art. 22 (4) (b) and
cannot be held to be unconstitutional or void.
Per MAHAJAN and DAs JJ.--The law enacted by the amending
statute is not the same law as was declared by the original
statute and to that extent the amended statute was in the
nature of a new and independent statute; the effect of s. 12
was to make the detention of the petitioners a fresh deten-
tion under the new law; and there was nothing in the new law
standing by itself which authorised detention of a person
for more than three months without reference to an Advisory
Board or for more than one year and there was thus no con-
travention of any of the provisions of Art. 22 (4).
Held also per KANIA C.J., PATANJALI SASTRI, MAHAJAN and
Das JJ. (Bose J. dissenting).--The Preventive Detention
(Amendment) Act, 1951, was not invalid on the ground that
it. did not fix a maximum period for detention, inasmuch as
the Act itself was to be in force only for a period of one
year and no detention under the Act could be continued
after the expiry of the Act. BoSE J.--Sub-section (1) of s.
11 of the impugned Act contravened Art. 22 (4) of the Con-
stitution inasmuch as it did not fix any maximum period of
detention, but on the other hand empowered the government in
express terms to order that a detention.shall continue "for
such period as it thinks fit". The view that a detention
which has been ordered under an Act would come to an end
with the expiry of the Act is not sound.
JUDGMENT:
ORIGINAL JURISDIGTION. --Petitions Nos. 303,617 to 619,
621 to 631, 567 to 571, 592, 594, 596 and 600 of 1950.
Petitions under Art. 32 of the Constitution for writs in the
nature of habeas corpus. The petitioners were detained in
pursuance of orders for detention made under s. 3 (1)(a)
(ii) of the Preventive Detention Act, 1950. On the 22nd
February, 1951, while they were under detention the Preven-
tive Detention (Amendment) Act, 1951, came into force and
this Act by substituting the figures "1952" for "1951" in
sub-sec. (3) of s. 1 of the Preventive Detention Act of 1950
continued the operation of the Act until 31st March, 1952.
Since the maximum period of detention fixed by the Act of
1950 was one year the petitioners applied for writs in the
nature of habeas corpus for their release. The material
facts, the points raised by
623
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the petitioners and the arguments of the counsel appeal in
the Judgment.
M.K. Nambiyar (V. G. Row, with him) for the Petitioner
in Petition No. 303 of 1950.
Bawa Shiv Charan Singh for the Petitioners in Petitions
Nos. 618, 619, 621,622, 624, 626, 627, 628, 629, 630 and 631
of 1950.
Basant Chandra Ghose (amicus curiae) for the Petitioners
in Petitions Nos. 567, 568, 569, 570, 571,592, 594,596, and
600 of 1950.
V.K.T. Chari, Advocate-General, Madras, and G.S.
Swaminathan (R. Ganapathy lyer. with them) for the Respond-
ents in Nos. 618, 619, 621,622, 624,626, 627, 628, 629, 630
and 631 of 1950.
Fakhruddin Ahmed (Nuruddin Ahmed, with him) for the
Respondents in Petitions Nos. 567, 568, 569, 570, 571,592,
594, 596 and 600 of 1950.
Petitioner in person in Petition No. 617 of 1950.
M.C. Setalvad, Attorney-General for India (R. Ganapathy
lyer, with him) for the Union of India, Intervener.
1951. May 7. The following Judgments were delivered --
KANIA C.J. - I agree with the Judgment prepared by
Sastri J. and have nothing more to add.
PATANJALI SASTRI J.--The common question which arises
for consideration in these petitions is whether certain
provisions of the Preventive Detention (Amendment) Act,
1951, purporting to amend the Preventive Detention Act,
1950, so as to authorise detention of , the petitioners to
be continued beyond the expiry of one year are ultra vires
and inoperative.
The amending Act hereinafter referred to as the new
Act) came into force on 22nd February, 1951, and by substi-
tuting the figures " 1952" for "1951" in subsection (3) of
section 1 of the Preventive Detention Act, 1950, (hereinaf-
ter referred to as the old Act) it
624
continues the operation of the old Act till 31st March,
1952.
The petitioners in all these cases were, at the com-
mencement of the new Act, under detention in pursuance of
orders made under section 3 (1) (a) (ii) of the old Act and,
save in a few cases where the detention was also attacked on
some special grounds which have no substance, the legality
of that detention was not open to question. But such deten-
tion having commenced more than a year before the date of
hearing of these petitions the petitioners would have been
entitled to be released had it not been for the provisions
of the new Act which purport to authorise the continuance of
their detention.
Mr. Nambiyar, on behalf of the petitioners, urged that
these provisions contravened article 22 (4) (a) of the
Constitution and were, therefore, void under article 13
(2). Article 22 (4) (a) provides:
"No law providing for preventive detention shall autho-
rise the detention of a person for a longer period than
three months unless
(a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as Judges of a
High Court has reported before the expiration of the said
period of three months that there is in its opinion suffi-
cient cause for such detention:
Provided that nothing in this sub-clause shall authorise
the detention of any person beyond the maximum period pre-
scribed by any law made by Parliament under sub-clause (b)
of clause (7)."
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It will be. seen that two conditions have to be ful-
filled in order that a person can be detained for a longer
period than three months; (i) his case must be referred to
an Advisory Board constituted in the manner specified and
(ii) that Board must make a report before the expiration of
three months that there is sufficient cause for such deten-
tion. Section 12 of the old Act having provided that there
was to be no review by an Advisory Board in cases falling
within
625
section 3 (1) (a) (ii), the petitioners’ detention in pursu-
ance of orders made under the latter section fell under
article 22 (4) (b), and there was no question, therefore, of
such detention contravening article 22 (4) (a). The scheme
of the new Act, however, was to extend the benefit of a
review by an Advisory Board to all cases and to bind the
detaining authorities to act conformably to the report of
the Board. The method adopted to give effect to this scheme
was to delete some of the provisions of the old Act and to
substitute in their place new provisions.
The material provisions of the new Act are sections 9,
10, 11 and 112. Section 9 provides for a reference to an
Advisory Board within six weeks from ’the date specified in
sub-section (2) which says "The date referred to in sub
section (1) shall be--(a) in every case where at the com-
mencement of the Preventive Detention (Amendment) Act, 1951,
the person is under detention in pursuance of a detention
order made under sub-clause (i) or sub-clause (ii) of clause
(a) of sub-section (1)of section 3, the date of commencement
of the said Act; and (b) in every other case the date of
detention under the order". By section 10 the Advisory Board
is required to submit its report within ten weeks from the
date specified in sub-section (2) of section 9. Section 11
(1)authorises the appropriate Government to continue the
period of detention for such period as it thinks fit in case
the Advisory Board reports that there are sufficient grounds
for the detention, while sub-section (2) provides that the
Government shall revoke the detention order and release the
person concerned if the Advisory Board reports the other
way. Sub-section (1) of section 12 declares for the "avoid-
ance of doubt" that every detention order in force at the
commencement of the new Act "shall continue in force and
shall have effect as if it had been made under this Act as
amended" by the new Act, and sub-section (2) provides that
nothing contained in subsection (3) of section 1 or in sub-
section (1) of section 12 of the old Act shall affect the
validity or duration of any such order.
626
It will be seen that although the object of the new Act
was to liberalise the provisions of the old Act in the
manner indicated above, section 12 had the effect of enlarg-
ing the period of detention of the petitioners who were
under detention at the commencement of the new Act by enact-
ing the legal fiction that detention in such cases shall
have effect as if it had been made under the new Act. On
that basis, the new Act seeks to bring detention orders in
force at its commencement and more than three months old
into conformity with article 22 (4) (a) by prescribing a
period of six weeks in section 9 for referring such cases to
the Advisory Board and ten weeks in section 10 (1) for the
submission by the Board of its report, the period in each
case being calculated from the commencement of the new Act.
But this fiction cannot obscure the fact that in the case of
the petitioners more than three months had elapsed from the
date of their arrest without any Advisory Board making a
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report on their detention and it is, of course, not possible
for the Advisory Board now provided for in such cases to
submit its report before the expiration of that period, with
the result that their detention contravened article 22 (4)
(a). No doubt the detention up to the commencement of the
new Act was lawful under section 12 of the old Act, as it
was in accordance with sub-clause (b) of clause (4) of
article 22, but that could not make the petitioners’ contin-
ued detention any the less a violation of article 22 (4) (a)
after the deletion of old section 12. It is a fallacy to
treat what was a lawful detention under sub-clause (b) as
being no detention at all for purposes of sub-clause (a).
Detention is a hard physical fact, and the total period of
detention of the petitioners having far exceeded three
months without an Advisory Board having reported within
three months that there were sufficient grounds therefor, it
could not lawfully be continued under article 22 (4)(a).
Constitutional provisions regarding fundamental rights
cannot be circumvented by resorting to legal fictions.
It was said that if the petitioners had been released on
22nd February, 1951, and re-arrested and detained
627
immediately thereafter under the new Act such detention
would have been valid. But, for proceeding in that manner
the enactment of section 9 (2)(a)and section 12 (1) would be
unnecessary. Parliament has, however, adopted a different
mode of proceeding by providing for the continuance of
detention orders in force at the commencement of the new Act
on the basis that they should have effect as if they had
been made under the new Act. The resulting position must,
therefore, be dealt with only on that basis and not on any
other hypothetical footing.
The Attorney-General, however, contended in the alterna-
tive that the constitutional validity of section 9 (2) (a)
and section 12 (1) of the new Act could be sustained under
article 22 (4) (b) which has been held by a majority of the
Judges in A.K. Gopalan v. The State of Madras (1) to be a
distinct and independent provision authorising preventive
detention for a period longer than three months in accord-
ance with a law made by Parliament under sub-clauses (a) and
(b)of clause (7) of article 22. The Attorney-General claimed
that the aforesaid provisions were such a law, none the less
because Parliament may have intended to make a law within
article 22 (4) (a) by providing for a review by an Advisory
Board in all cases of preventive detention. On a question
of vires, the intention of the Legislature is immaterial,
and I agree that a provision for an Advisory Board is not a
hall-mark which stamps a preventive detention law as one
necessarily falling within sub-clause (a) of clause (4), so
as to make its constitutional validity determinable exclu-
sively with reference to the requirements of that sub-
clause. The law could still be upheld if it fulfilled the
conditions laid down in sub-clause (b) of clause (4). Mr.
Nambiyar, however, submitted that the new Act did not fulfil
those conditions, for it is not a law made under subclauses
(a) and (b) of clause (7). The word "and" should be under-
stood in its ordinary conjunctive sense, and the new Act
neither prescribes the circumstances and classes referred
to in sub-clause (a)nor the (1) [1950] S.C.R. 88,
(1) [1950] S.C.R.88.
628
maximum period of detention required to be prescribed under
sub-clause (b) of clause (7). The contention is devoid of
substance. The new Act can, in my opinion, be regarded as a
law made substantially in accordance with sub-clauses (a)
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and (b) of clause (7). According to the majority view in
Gopalan’s case, sub-clause (a) of clause (7)being an ena-
bling provision, the word "and" should be understood in a
disjunctive sense. The combined effect of sections 9(2)(a)
and 12(1) is to provide, in a certain class of cases, name-
ly, where detention orders were in force at the commencement
of the new Act, that the persons concerned could be detained
for a period longer than three months if an Advisory Board
reports that there are sufficient grounds for detention
within ten weeks from the commencement of the new Act, that
is to say, without obtaining the opinion of an Advisory
Board before the expiration of the three months from the
commencement of the detention as provided in sub-clause (a)
of clause (4). And, although ’the new Act does not in
express terms prescribe in a separate provision any maximum
period as such for which any person may in any class or
classes of cases be detained, it fixes, by extending the
duration of the old Act till the 1st April, 1952, an over-
all time limit beyond which preventive detention under the
Act cannot be continued. The general rule in regard to a
temporary statute is that, in the absence of special provi-
sion to the contrary, proceedings which are being taken
against a person under it will ipsofacto terminate as soon
as the statute expires (Craies on Statutes, 4th Edition, p.
347). Preventive detention which would, but for the Act
authorising it, be a continuing wrong, cannot, therefore, be
continued beyond the expiry of the Act itself. The new Act
thus in substance prescribes a maximum period of detention
under it by providing that it shall cease to have effect on
a specified date. It seems to me, therefore, that section
9(2)(a) and section 12(1) of the new Act substantially
satisfy the requirements of sub clause (b) of clause (4) of
article 22, and cannot be declared unconstitutional and
void.
629
The objection to the validity of section 11(1) can be
disposed of in a few words. The argument is that the discre-
tionary power given to the appropriate Government under that
sub-section to continue the detention "for such period as it
thinks fit" authorises preventive detention for an indefi-
nite period, which is contrary to the provisions of article
22(4). But, if, as already observed, the new Act is to be
in force only up to I st April, 1952, and no detention under
the Act can continue thereafter, the discretionary power
could be exercised only subject to that over-all limit. The
objection therefore fails.
In the result the petitions are dismissed.
MAHAJAN J.--The question to be decided in these peti-
tions is whether the Preventive Detention (Amendment) Act,
1951, or any part thereof is invalid and whether the peti-
tioners who have been detained are entitled to a writ in the
nature of habeas corpus on the ground that their detention
is illegal.
The Act was enacted by Parliament on the 27th February,
1951, and according to its express terms will cease to have
effect on the 1st April, 1952, save as regards things done
or omitted to be done before that date.
The point that has been canvassed before us is that
sections 9 (2)(a) and 12 of the Act are invalid as these
infringe the fundamental rights conferred under articles 21
and 22 of Part III of the Constitution. Section 9 of the Act
as amended reads as follows :--
"(1) In every case where a detention order has been made
under this Act, the appropriate Government shall, within six
weeks from the date specified in subsection (2) place before
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an advisory board constituted by it under section 8 the
grounds on which the order has been made and the representa-
tion, if any, made by the person affected by the order, and
in case where the order has been made by an officer, also
the report made by such officer under sub-section (a) of
section 3.
81
630
(2) The date referred to in sub-section(1) shallbe--
(a) in every case where at the commencement of the
Preventive Detention (Amendment) Act, 1951, a person is
under detention in pursuance of a detention order made under
sub-clause (i) or (ii) of clause (a) of sub-section (1) of
section 3, the date of commencement of the said Act; and
(b) in every other case the date of the detention
order.’’
Section 12 is in these terms :--
"For the avoidance of doubt it is hereby declared--
(a) every detention order in force at the commencement of
the Preventive Detention (Amendment) Act, 1951, shall con-
tinue in force and shall have effect as if it had been made
under this Act as amended by the Preventive Detention
(Amendment) Act, 1951; and
(b) nothing contained in sub-section (a) of section 1,
or sub-section (1) of section 12 of this Act as originally
enacted shall be deemed to affect the validity or duration
of any such order."
Mr. Nambiar for the detenus challenged the vires of
these sections on the following grounds: (1) That article 22
(4) of the Constitution limits the legislative power of
Parliament and State legislatures in respect of preventive
detention laws in the matter of duration of the period of
detention and provides that no law of preventive detention
can authorise the detention of a person for a longer period
than three months without the intervention of an advisory
board and without obtaining its opinion within three months.
The amending Act, 1951, by section 9 authorizes detention
for a period longer than three months without the opinion of
the advisory board having been obtained within the said
period of three months from the date of the actual detention
in respect of persons detained under Act IV of 1950 as it
originally stood and it thus infringes the fundamental right
conferred by article 22(4). (2) That Parliament in exercise
of powers conferred on it under article 22(7) having pre-
scribed in section 12 of Act IV
631
of 1950 a maximum period of one year for detention in cer-
tain classes of cases without obtaining the opinion of the
advisory board, that period of one year became a part of the
content of the fundamental right conferred under article
22(4) of the Constitution. Sections 9 and 12 of the amended
Act contravene this fundamental right inasmuch as they
authorize detention of persons who were detained under
orders passed under section 3 (1) (i) and (ii) of Act IV of
1950 beyond the period of one year prescribed therein, and
are therefore void. (3) That Parliament has no authority to
alter the period of one year prescribed by it by virtue of
authority given to it under article 22(7) (b) of the Consti-
tution so as to affect the eases of persons detained under
Act IV of 1950. (4) That the Constitution does not envisage
detention for an indefinite period and that inasmuch as the
amended Act has failed to provide a maximum period for the
detention of a person, it is repugnant to the Constitution
and is void; that it was obligatory on Parliament while
making the law providing for preventive detention to fix the
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maximum period for such detention. (5) That the provisions
of these sections infringe article 21 of the Constitution
inasmuch as they authorize detention contrary to procedure
established by law (Act IV of 1950) in respect of detentions
under that Act, because under established procedure deten-
tion beyond a period of one year was void. For the ,reasons
given above it was contended that as in the case of the
petitioners the maximum period of one year under section 12
of Act IV of 1950 had expired on 27th February, 1951, they
were entitled to their release.
For a proper appreciation of the points urged by the
learned counsel and the manner in which they were combated
by the learned Attorney-General, it is necessary to shortly
state the nature of the relevant amendments introduced by
the-amending Act in the Preventive Detention Act, IV of
1950. In section 8 of Act IV of 1950, which concerns the
constitution of advisory boards, the new Act has provided
that the board shall consist of three persons instead of two
except in cases
632
where before the commencement of the amended Act reference
had already been made to an advisory board. Section 9 of Act
IV of 1950 has been substituted by section 9 of the amending
Act and it gives the benefit of the advisory board to all
classes and cases of persons, who under Act IV of 1950 were
not entitled to that benefit. It makes it obligatory on
government to place all these cases, like all other cases,
within six weeks from a prescribed date before an advisory
board. In section 10 the amended Act makes it obligatory on
the advisory board to submit its report to the government
within ten weeks of the date specified under section 9 and
it also authorizes the advisory board to call for such
information as it deems necessary from government and from
the person concerned and it empowers it to give a hearing to
the detenuif in any particular case it considers it essen-
tial. Section 11 makes the opinion of the advisory board
binding on government. It also authorizes government to
continue the detention of persons for such period as it
thinks fit in cases where the opinion of the board is in
favour of the continuance of detention. Section 12 provides
that orders of detention in force at the commencement of the
amended Act will be deemed to have been made under this Act.
A new section, 14, has been introduced in Act IV of 1950 and
it authorizes temporary release of persons detained.
The provisions of the amended Act are thus a great
improvement on the original Act inasmuch as they provide a
greater opportunity to the detenus of proving their inno-
cence than they had under the original Act. The detention of
a person without the case being referred to the opinion of
an advisory board constituted of independent persons has
been completely done away with, except for a period of three
months provided for in article 22(4) of the Constitution.
What the amended Act has in substance done is that instead
of the cases of persons preventively detained being consid-
ered by ordinary courts of law, a special tribunal designat-
ed as an advisory board and consisting of men of high judi-
cial experience has been given authority
633
to examine their cases within a prescribed period and the
decision of that authority has been made binding on govern-
ment. This tribunal is obviously no substitute for a court
of law but a provision like this is in the nature of a
substantial solatium in cases of preventive detention where-
in ordinarily the detaining authority is the judging author-
ity as well.
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Shortly stated, Mr. Nambiar’s attack on these beneficial
provisions and concerning their vires is based principally
on the method adopted by the draftsmen of the Act for
switching over the detentions which were being continued
under section 12 of Act IV of 1950 and which were valid by
virtue of the constitutional provisions contained in article
22(4) (b) of the Constitution to the constitutional provi-
sions contained in article 22(4)(a)so that they may be given
the benefit of an advisory board’s opinion. His grievance
is that in doing so the amended statute has enlarged the
period of three months provided under article 22(4) for a
report of the advisory board and has extended the period of
one year mentioned in section 12 of Act IV of 1950. This
argument is based on the assumption that the period of one
year mentioned in section 12 of Act IV of 1950 was an im-
mutable and unalterable one and that Parliament could not
amend section 12 of the Act in any manner whatsoever once
having enacted it. I am unable to accept this contention. It
seems to me, that it was open to Parliament to amend section
12 and substitute another maximum for the period of one year
mentioned therein. If Parliament had recourse to that
alternative, then in my opinion, the petitioners could have
no possible grievance as regards the vires of the new legis-
lation. As regards the period of three months, it was essen-
tial to fix some date from which that period had to be
calculated in respect of cases which were previously gov-
erned by section 12 of Act IV of 1950. Under that section
they did not have the benefit of the advisory board and when
the new law gave them that benefit, a terminus quo had to be
fixed for the period of three months during which the advi-
sory board had to submit its report. The amended Act
634
achieved this by prescribing in these specified classes of
cases the date of the commencement of the amended Act as the
date from which this period was to begin and by section 12
it provided that all detentions continuing at the date of
the commencement of the amended Act shall be deemed to be
detentions under the amended Act.
After a careful consideration of the argument of Mr.
Nambiar I have reached the conclusion that there is consid-
erable force in the reply made to it by the learned Attor-
ney-General. He contended that article 22(4) provides that
no law providing for preventive detention shall authorize
detention of a person for a longer period than three months
and that the amended Act has not in any manner infringed
this provision; on the other hand, it provides that the
advisory board must make its report to the government within
ten weeks. It was urged that in order to judge the vires of
the amended Act it was not relevant to take into considera-
tion detention of persons validly detained under differ-
ent statute and that its vires must be adjudged on its own
provisions and not with reference to what has actually
happened under another law. It was frankly conceded that if
Parliament or a State legislature passed legislation in a
manner which amounted to a fraud on the Constitution inas-
much as those enactments were passed with the purpose of
defeating the constitutional provisions, then those laws
could be attacked on that ground but not on the ground of
their vires, that in the present case no such argument had
been taken or could be taken and that being so, the conten-
tion of Mr. Nambiar was not justified.
In my opinion, the statute as framed does not in any way
contravene or abridge either the provisions of article 21 or
of article 22. It was open to Parliament, as already ob-
served, to alter the maximum period of detention mentioned
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in section 12 of Act IV of 1950 and to enhance it. It was
also open to government to release these detenus after the
expiry of one year and to serve fresh orders of detention on
them after their release under the amended Act. If that
635
had been done, no question could possibly be raised that the
period of three months provided for in article 22(4) of the
Constitution had in any way been affected. Instead of going
through that form of ceremony, Parliament by section 12 of
the amended Act provided that all detention orders in force
under Act IV of 1950 be treated as detention orders under
the amended Act. By the effect of this section the detention
of all such persons becomes a fresh detention under the new
law, with the result that nothing in the amended statute can
be said to abridge the fundamental right conferred by arti-
cle 22(4) of the Constitution. It was argued that the
amended statute is not a new and an independent statute and
that in spite of the amendments it remains the same statute
as was passed in 1950, and that the detention of the peti-
tioners is under the same law of preventive detention and it
therefore offends against article 22(4) of the Constitution
and that it virtually amounts to tacking of the period of
detention under one Act to the period of detention under
another Act and as such amounts indirectly and substantially
to an infringement of the fundamental right. In my opinion,
this contention, though attractive, is without force. Tech-
nically speaking, an amended statute remains the same stat-
ute as originally enacted but from that proposition it does
not follow that the law contained in the amended statute is
the same law as was contained in the original one. Section 9
of the original Act has been substituted by section 9 of the
amended Act and declares a new law and it is not a re-enact-
ment of the law as was contained in the earlier statute.
Section 12 of the original statute has been completely
repealed and no longer exists. The law declared by that
section has been abrogated. The law declared by section 12
of the amended Act is in the nature of a substituted provi-
sion. It seems to me that the law declared by the amended
statute is not the same law as was declared by the original
statute and to that extent the amended statute is in the
nature of a new and independent statute. The petitioners
are being detained today by
636
force of the provisions contained in sections 9 and 12 of
the amended Act and not under the law that was passed in
1950, as by repeal of section 12 of that Act their detention
under it technically terminated. The new law admittedly
standing by itself does not authorize detention of any
person beyond a period of three months except in the manner
provided by article 22(4) of the Constitution. No question
whatever arises of tacking of the period of detention under
one law to the period of detention under another law, inas-
much as the detention under the earlier law automatically
terminates with the repeal of section 12 of Act IV of 1950.
For the reasons given above, the first contention of Mr.
Nambiar fails.
In view of the above decision it is unnecessary to
consider the alternative argument of the learned Attorney-
General to the effect that in case it is held that section 9
contravenes article 22(4) (a) of the Constitution, it is a
valid law under article 22(4) (b) of the Constitution and
hence the order of detention is legal. Mr. Nambiar’s con-
tention to the effect that in case the petitioners’ deten-
tion is regarded as a fresh detention under the amended Act,
then it is necessary to serve them with fresh grounds of
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detention does not appear to me to be well founded. The
point was not raised in the petitions and no argument was
addressed to us that any right under article 22(5) had been
infringed. Moreover, as at present advised, I think the
contention has not got much force because of the clear
provisions of section 12 of the amended Act which treats
every detention order having force at the commencement of
the amended Act as being deemed to continue under it. When
detention is not on any fresh grounds but on grounds al-
ready. served, any default in observing the formality of
again serving those very grounds on the detenu cannot be
said to be an infringement of the fundamental right under
article 22(5) of the Constitution.
The next contention of Mr. Nambiar that Parliament
having fixed the maximum period of detention in section 12
of Act IV of 1950 under its powers contained
637
in article 22 (7) of the Constitution, that maximum became
apart of the content of fundamental right and sections 9 and
12 of the amended Act contravene this fundamental right
inasmuch as these authorize detention of the petitioners for
a period beyond one year again, in my opinion, is not sound.
In other words, the argument of the learned counsel amounts
to this that as soon as Parliament by law under article 22
(7) prescribed a maximum period for which any person may be
detained under any law providing for preventive detention,
then that period becomes a part of the fundamental right
conferred on a person under Part III of the Constitution.
The only method of adding to or subtracting ’from those
rights is by an amendment of the Constitution in the manner
provided therein. By clause (7) of article 22 Parliament has
not been authorized to add to the fundamental rights. The
contention of the learned counsel is based on an erroneous
assumption that article 22 in clause (7) confers a fundamen-
tal right on a person; in its true concept it restricts to a
certain degree the measure of the fundamental right con-
tained in clause 4 (a) of the article.
The argument that Parliament has no authority to alter
the period of one year prescribed by it under article 22 (7)
(b) of the Constitution is again founded on an erroneous
assumption that the clause confers legislative power on
Parliament. The ambit of the legislative powers of Parlia-
ment is contained in article 245 of the Constitution read
with the entries in the Seventh Schedule. Article 22 of the
Constitution restricts those powers to a certain extent. It
does not enlarge them. Clause (7), however, cuts down these
restrictions to a certain extent. Parliament having power
to make the law has also the power to alter or amend it, if
it so chooses. It is difficult to assent to the proposition
of the learned counsel that if a person is detained accord-
ing to a law that existed at the time of his detention, then
in regard to him it is that and that law alone which matters
and any change in the
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638
law, even if it has retrospective effect, cannot affect him
in any manner whatever.
The next point canvassed before us was that the Consti-
tution does not envisage detention for an indefinite period
and that it is obligatory on Parliament to provide a maximum
period for detention of a person under a law of preventive
detention. In my opinion, this argument again is not sound.
Emphasis was laid on the proviso to article 22 (4) (a) which
enacts that nothing in the sub-clause shall authorize the
detention of any person beyond the maximum period prescribed
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by any law made by Parliament under sub-clause (b) of clause
(7), and it was urged that the word "may" in article 22 (7)
must be read in the sense of "must" and as having a compul-
sory force inasmuch as the enactment authorizes Parliament
to prescribe by law a maximum period for detention, for the
advancement of justice and for public good, or for the
benefit of persons subjected to preventive detention. Refer-
ence was made to Maxwell on "Interpretation of Statutes"
(9th Edn., page 246) and to the well-known case of Julius v.
Bishop of Oxford(1). Lord Cairns in that case observed as
follows :--
‘‘Where a power is deposited with a public officer for
the purpose of being used for the benefit of persons that
power ought to be exercised.’’
In my opinion, clause (7) of’article 22, as already
pointed out, in its true concept to a certain degree re-
stricts the measure of the fundamental right contained in
clause (4) (a) and in this context the rule referred to by
Maxwell has no application whatever. Moreover, the provision
in the Constitution is merely an enabling one and it is well
settled that in an enabling Act words of a permissive nature
cannot be given a compulsory meaning. (Vide Craies on Stat-
ute Law, p. 25,4). Be that as it may, the point is no longer
open as it has been concluded by the majority decision in
Gopalan’s case(2). The learned Chief Justice at p. 119 of
the report observed as follows :--
(1) 5 App. Cas. 214. (2) [1950] S.C.R. 88.
639
"Sub-clause (b) is permissive. It is not obligatory on
the Parliament to prescribe any maximum period. It was
argued that this gives the Parliament a right to allow a
person to be detained indefinitely. If that construction is
correct, it springs out of the words of sub-clause (7)
itself and the court cannot help in the matter."
Nothing said by Mr. Nambiar is sufficient to persuade me
to take a different view of the matter than was taken in
Gopalan’s case(1). It may be pointed out that Parliament may
well have thought that it was unnecessary to fix any maximum
period of detention in the new statute which was of a tempo-
rary nature and whose own tenure of life was limited to one
year. Such temporary statutes cease to have any effect after
they expire, they automatically come to an end at the expiry
of the period for which they have been enacted and nothing
further can be done under them. The detention of the peti-
tioners therefore is bound to come to an end automatically
with the life of the statute and in these circumstances
Parliament may well have thought that it would be wholly
unnecessary to legislate and provide a maximum period of
detention for those detained under this law.
The last point urged by Mr. Nambiar that the provisions
of the amended Act contravene the provisions of article 21
of the Constitution does not impress me. The expression
"procedure established by law" was considered by the majori-
ty in Gopalan’s case(1) as meaning procedure prescribed by
law. The petitioners have been detained in accordance with
the procedure prescribed by the amended statute and their
detention therefore is in accordance with procedure pre-
scribed by law. The contention of Mr. Nambiar that they are
governed by the procedure contained in section 12 of Act IV
of 1950 as that was the procedure at the time when initially
they were detained is, in my opinion, unsound. It is open
to Parliament to change the procedure by enacting a law and
that procedure becomes the procedure established by law
within the meaning
(1) [1950] S.C.R. 88.
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640
of that expression in article 21 of the Constitution. Fur-
ther, the present detention of the petitioners being by
virtue of section 12 of the amended Act a new detention
under the amended Act, the procedure prescribed by the
amended Act is the procedure established by law within the
meaning of article 21.
For the reasons given above, in my opinion, the Preven-
tive Detention (Amendment) Act, 1951, is a valid statute and
the provisions impugned by Mr. Nambiar do not contravene the
Constitution and the petitioners are not entitled to their
release merely on the ground that the period of one year
mentioned in section 12 of Act IV of 1950 has expired.
On the merits of the petitions it was urged (1) that the
grounds supplied to them were vague and insufficient to
enable them to make a proper representation, and (2) that
their detention was mala fide and on political and party
considerations. There is no force whatever in these conten-
tions.
The result is that all these petitions are dismissed and
the rules are discharged. This order will have force in the
case of petitioners who have so far not been released by
Government.
S.R. DAS J.--I agree that the petitions should be dis-
missed and I do so substantially on the grounds stated by my
learned brother Mahajan.
BOSE J.--With the utmost respect I am unable to accept
the majority view. In my judgment, section 11 (1) of the
amending Act is ultra vires. The ground on which I hold it
to be so was suggested by me in the course of the arguments.
It was, however, not very fully dealt with possibly because
I expressed my view at a late stage and possibly because I
did so somewhat sketchily. But as I am ploughing a lonely
furrow that, fortunately, will not much matter.
Articles 21 and 22 confer the fundamental right of
personal liberty. The first is general, and as the meaning
of the words "procedure established by law" has
641
been thoroughly discussed in Gopalan’s case(1), I do not
intend to cover that ground. But so far as article 22 (4)
is concerned, my opinion is that it confers a fundamental
right not to be kept under preventive detention beyond a
certain period. The extent of that period can vary but it
can only be extended beyond three months within certain
fixed limits and subject to specified conditions.
Article 246 read with item 9 in List I and item 3 in
List III of the Seventh Schedule confers jurisdiction upon
the Union Parliament and the State Legislatures to make laws
for preventive detention, but article 22 (4) imposes re-
strictions. It says that-
" No law providing for preventive detention shall autho-
rise the detention of a person for a longer period than
three months,"
unless certain conditions are fulfilled.
The conditions are set out in sub-clause (a) and sub-
clause (b). Under the former, a law can provide for preven-
tive detention over three months provided (1) there is an
advisory board of a certain character, (2) the board is of
opinion that there is sufficient cause for longer detention,
and (:3) the board reports before the expiration of the
three months. Then follows a further restriction which is
contained in the proviso to sub-clause (4). This states
that--
" nothing in this sub-clause shall authorise the deten-
tion of any person beyond the maximum period prescribed by
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any law made by Parliament under sub-clause (b) of clause
(7)."
Sub-clause (b) of clause (7) reads as follows :-
"(7) Parliament may by law prescribe.
(b) the maximum period for which any person may in any
class or classes of cases be detained under any law provid-
ing for preventive detention."
The second set of conditions is given in sub-clause (b)
of clause (4). This sets out that a person can also be
detained beyond three months provided--
(1) [1950] S.C.R. 88.
642
"such person is detained in accordance with the provi-
sions of any law made by Parliament under subclauses (a) and
(b) of clause (7)."
I venture to underline the "and" because, in my opinion,
a lot turns on it. But I shall deal with that later.
Sub-clause (a) of clause (7) empowers Parliament to
prescribe-
" the circumstances under which, and the class or class-
es of cases in which, a person may be detained for a period
longer than three months under any law providing for preven-
tive detention without obtaining the opinion of an advisory
board in accordance with the provisions of sub-clause (a) of
clause (4)."
In my opinion, these provisions confer a fundamental
right not to be detained beyond a certain period. The extent
of that period can vary but the maximum period of detention
cannot exceed certain fixed limits. Those limits are (a) in
the first instance, three months: not, (b)the maximum
prescribed by Parliament under sub-clause (7) (b). In my
opinion, no law can be made authorising detention either
under sub-clause (4) (a) or (4) (b) unless a maximum period
of detention is prescribed by Parliament under sub-clause
(7) (b).
I do not agree with the contention that the word "may"
in clause (7) means "must". I am not prepared to depart from
the usual meaning of words unless compelled to do so for
overwhelming reasons. In my opinion, Parliament is free to
prescribe or not to prescribe a maximum period under clause
(7)(b). It cannot be compelled to do so. But equally neither
Parliament nor a State Legislature is compelled to authorise
preventive detention beyond three months. If, however,
either wishes to do so, then it is bound to conform to the
provisions of either sub-clause (a)or sub-clause (b) of
clause (4) or both; and in the case of sub-clause (a) the
proviso is as much a part of the subclause as its main
provision. If no maximum limit is fixed under clause (7)
(b), then the proviso cannot operate and if it cannot oper-
ate, no legislative action
643
can, in my opinion, be taken under clause (4) (a). If A is
told by B that he may go to a bank and withdraw a sum of
money not exceeding such limit as may be fixed by C, it is
evident that until C fixes the limit no money can be with-
drawn. C cannot be compelled to fix a limit but if he
chooses not to do so, the money cannot be withdrawn. Equal-
ly, if A is told that he may withdraw money not exceeding a
limit which he himself may fix, there can, in my opinion, be
no right of withdrawal until he fixes the limit.
Look at it another way. A British General is told by the
Indian Government that he may travel from India to Burma
quickly and easily by plane. He is also told that he may in
addition drive by car over the hills and through the jungles
provided he does not go beyond the confines of any road made
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by the Burmese Government; and the Burmese Government is
told that it may, if it so chooses, put in a road at India’s
expense. It is fairly obvious that the Burmese Government is
not bound to make the road and it is equally obvious that
under these conditions the General will not be able to go by
car unless the road is made.
I realise that analogies are often inaccurate and may be
misleading. But these examples serve to illustrate the line
of my reasoning. In my opinion, the Constitution (a) tells
the State Legislatures that they may legislate for preven-
tive detention beyond three months but not beyond a limit
which Parliament may fix and (b) tells Parliament that
Parliament itself may do the same thing provided the deten-
tion does not exceed a maximum which it may itself fix.
There is no need to fix a maximum in either event but if
that is not done, then there can be no legislation under
clause (4) (a). Until the road is built there is no right of
way.
The same limitation attaches to clause (4) (b). Legisla-
tive action cannot be taken under this unless, first, the
law is made by Parliament and, second, it is made "under
sub-clauses (a) and (b) of clause (7)". I again venture to
underline the "and" because, in my opinion, "and" means and
should mean "and" unless there is
644
compelling reason to make it mean" or ". To my mind, not
only is there no compelling reason here but, on the con-
trary, there are powerful reasons why it should be construed
in its usual and normal sense. The reasons are these.
Articles 21 and 22 confer a fundamental right and give a
fundamental guarantee. It is therefore the duty of the Court
to see that the right is kept fundamental and that the
fullest scope is given to the guarantee. It is our duty to
ensure that the right and the guarantee are not rendered
illusory and meaningless. Therefore, wherever there is scope
for difference of opinion on a matter of interpretation in
this behalf, the interpretation which favours the subject
must always be used because the right has been conferred
upon him and it is the right which has been made fundamen-
tal, not the fetters and limitations with which it may be
circumscribed by legislative action. It ,is true the full
scope and content of the right cannot be determined without
examining the boundaries within which it is to be confined,
and I agree that in interpreting these provisions equal
weight must be given to all the clauses; also that no one
part can be treated with greater sanctity than the rest.
But if, when all that is done, doubt still remains, then the
doubt must, in my judgment, be resolved in favour of the
subject and not of the State.
Brush aside for a moment the pettifogging of the law
and forget for the nonce all the learned disputations about
this and that, and "and" or "or ", or "may" and "must ".
Look past the mere verbiage of the words and penetrate deep
into the heart and spirit of the Constitution. What sort of
State are we intended to be ? Have we not here been given a
way of life, the right to individual freedom, the. utmost
the State can confer in that respect consistent with its own
safety ? Is not the sanctity of the individual recognised
and emphasised again and again ? Is not our Constitution in
violent contrast to those of States where the State is
everything and the individual but a slave or a serf to serve
the will of those who for the time being wield
645
almost absolute power ? I have no doubts on this score. I
hold it therefore to be our duty, when there is ambiguity or
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doubt about the construction of any clause in this chapter
on Fundamental Rights, to resolve it in favour of the free-
doms which have been so solemnly stressed..Read the magnifi-
cent sweep of the preamble :-
"We, the people of India, having solemnly resolved to
constitute India into a Sovereign Democratic Republic and to
secure to all its citizens: Justice, Liberty, Equality,
Fraternity."
Read the provisions of the chapter on Fundamental Rights
:--
"All citizens shall have the right etc."
*
"No person shall be deprived Of his life or personal
liberty except according to procedure established by law."
*
No person who is arrested shall be detained in custody
without etc..."
*
"No law providing for preventive detention shall autho-
rise etc. unless--"
Read the provisions which circumscribe the powers of
Parliament and prevent it from being supreme. What does it
all add up to ? How can it be doubted that the stress
throughout is on the freedoms conferred and that the limita-
tions placed on them are but regrettable necessities ?
I do not doubt that in construing the Constitution we
must do so according to all the usual well recognised canons
of construction. I do not doubt that when the language is
plain, full effect must be given to it whatever the implica-
tions. All I insist on is that when there is ambiguity or
doubt and it is possible to take either this view or that,
then we must come down on the side of liberty and freedom;
and I err in good company in so holding. Lord Romer said as
much in Liversidge’s case(1) though he made an exception in
the
(1) [1942] A.C. 206 at 280.
83
646
case of war legislation. How can it be said that in this
case there is no ambiguity and that there is no room for
doubt ? When I am asked to hold that "and" means "or" and
that "may" means "must", how can it be said that there is no
room for difference of opinion? When I am told that--
"no law providing for preventive detention shall autho-
rise the detention of a. person for a longer period than
three months"
unless there is an Advisory Board etc., and even then not
beyond
"the maximum period prescribed by any law made by Par-
liament under sub-clause (b) of clause (7)"
how can it be said that there iS no doubt about the
intention and that this clearly and unambiguously means that
the detention can be for an indefinite period even under a
State law if Parliament does not choose to act under clause
(7)(b) ? To my mind, there is ambiguity and there is room
for doubt.
I feel that the people of India chose for themselves the
free way of life and that they entrusted to Parliament,
which represents their will, the duty of satisfying itself
that any limitations hereafter to be placed on the freedoms
conferred are necessary and essential and that these limita-
tions will not exceed such limits as Parliament itself shall
determine solemnly and deliberately, after anxious scrutiny
and dutiful care. I cannot bring myself to believe that the
framers of our Constitution intended that the liberties
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guaranteed should be illusory and meaningless or that they
could be toyed with by this person or that. They did not
bestow on the people of India a cold, lifeless, inert mass
of malleable clay but created a living organism, breathed
life into it and endowed it with purpose and vigour so that
it should grow healthily and sturdily in the democratic way
of life, which is the free way. In the circumstances, I
prefer to decide in favour of the freedom of the subject.
I am not hampered here by considerations of war necessi-
ty or emergency legislation where some authorities hold that
the canons of construction are different
647
and that allowance must be made in favour of the State for
the imperfections of language used in legislation which had
to be drafted and enacted in a desperate hurry with the
State in dire and immediate peril. I am construing a Consti-
tution which was hammered out solemnly and deliberately
after the most mature consideration and with the most anx-
ious care. I feel bound, therefore, when there is ambiguity
or doubt, to resolve it in favour of what I conceive to be
the free way of a Sovereign Democratic Republic. After all,
who framed the Constitution and for whose benefit was it
made ?,--not just for those in brief authority, not only for
lawyers and dialecticians but for the common people of
India. It should therefore be construed, when that can be
done without doing violence to the language employed, in a
simple straightforward way so that it makes sense to the man
in the street, so that the common people of the land can
follow and understand its meaning. To my mind, the whole
concept of the Constitution is that after years of bitter
struggle the citizens of India are assured that certain
liberties shall be guaranteed to them and that these liber-
ties shall not be curtailed beyond limits which they and all
the world. can know and which can Only be fixed by the
highest authority in the land, Parliament itself, directly
and specifically after affording opportunity for due delib-
eration in that august body. I would struggle hard against
any interpretation which permitted evasion of those impor-
tant limitations and which permitted those hardwon liberties
to be curtailed by some accidental side wind which allows
virtual delegation of the responsibility for fixing the
maximum limits which Parliament is empowered to fix, to some
lesser authority, and worse, for fixing them ad hoc in each
individual case, for that, in my opinion, is what actually
happens, whatever the technical name, when Parliament fixes
no maximum and lesser authorities are left free to decide in
each case how long the individual should be detained. I am
clear that these are not matters which should be viewed
technically or narrowly but in the broad and liberal spirit
in which they were conceived. Bearing this in mind, I will
648
proceed to examine the impugned provisions of the amending
Act.
In my judgment, section 9 is good because it confers a
8benefit and a privilege. It takes away nothing. It gives
all detenus the right to go before an Advisory Board for
review of their cases. It confers this right not only on
those who may be detained in the future but also on those
already under detention. And further, it confers this right
on those who had no such right before. This is not an in-
fringement of any fundamental right nor does it contravene
any article of the Constitution; therefore Parliament was
free to legislate as it pleased regarding that. It was free
artificially to alter the starting point of the order of
detention which is what it has done in sub-section (2)(a).
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That section, in my judgment, is intra vires.
So also is new section 12 which continues in force
existing detentions despite the expiry of the old Act and
states that the passing of the new Act shall not affect
either the validity or duration of orders passed under the
old Act. It will be remembered that the detentions we are
considering in these cases were good under the old Act.
That Act prescribed a maximum limit, namely one year, for
this class of detention. In my opinion, Parliament had the
right to say in this particular manner, for the purpose of
removing doubts, that detentions already in force under that
Act should continue in force for the maximum period already
prescribed. That, to my mind, is the force of the words
"continue," "validity" and "duration." That would have been
the result in any event but section 12 is there to remove
possible doubts.
Section 11 (2) is also good because here again a benefit
is conferred. Detenus who had no right to release on the
advice of an Advisory Board are here given this ’ privilege.
Therefore, this is also intra vires. But sub-section (1)
is, to my mind, ultra vires. It is here that we find an
infringement of article 22(4). It reads:--
"In any case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention
of a person, the appropriate Government may
649
confirm the detention order and continue the detention of
the person concerned for such period as it thinks fit."
This is word for word the same as section 11 of the old
Act. It does not prescribe a maximum limit.
Now section 11 replaces sections 11 and 12 of the old
Act. The amending Act directs that new section 11 be sub-
stituted for old sections 11 and 12. Old section 12 had
prescribed a maximum limit of one year in certain classes of
cases. That is done away with in the new Act. As regards
the rest, neither the old Act nor the new prescribes any
limit for other classes of detention. That, in my opinion,
not only contravenes article 22 (4) but in effect shifts the
responsibility for prescribing a maximum to the executive
authorities of each State and allows them to do it ad hoc in
each case. I am not speaking technically at the moment. I
am viewing it broadly as the man in the street would. I am
placing myself in the position of the detenu and looking at
it through his eyes. The niceties of the law do not matter
to him. He does not care about grammar. All that matters to
him is that he is behind the bars and that Parliament has
not fixed any limit in his kind of case and that local
authorities tell him that they have the right to say how
long he shall remain under detention. I cannot bring myself
to think that this was intended by the Constitution. The
powers given to Parliament are ample. The safeguards for the
safety of the State are all there. In the last resort,
immediate action can be taken under the emergency provi
sions. Therefore, when Parliament and the State Legislatures
are told that they cannot authorise preventive detention
beyond three months unless Parliament does this and that, I
am of opinion that the responsibility to do these things is
on Parliament itself and that in this particular matter
there can be no delegation of authority. The Constituent
Assembly has entrusted this particular matter to the care of
Parliament itself and has made this Parliament’s special
responsibility. The country is therefore entitled to receive
the benefit of the mature judgment, wisdom and patriotism
of that august body.
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I am not doubting Parliament’s general powers of delega-
tion. But, in my opinion, these powers are circumscribed
and each case must be judged upon its own circumstances. As
this matter is under consideration in another case and as
mine is a dissenting voice here, all I need say in this case
is that in my judgment this is not one of the matters which
can be delegated.
It was said that all this is irrelevant because a maxi-
mum limit has in fact been fixed in the present instance.
It was argued that the life of this Act has only been fixed
for one year and that the life of the old Act was also only
one year and that this in effect fixes a maximum. I am
aware that there is high authority for this view and I
venture to dissent with the utmost reluctance, but with the
greatest respect I find myself unable to agree. ’
In the first place, I cannot agree that the maximum
limit which Parliament is authorised to fix can.be fixed in
this indirect way. What Parliament is empowered to do under
article 22(7) (b) is to prescribe--,
"the maximum period for which any person may in any
class or classes of cases be detained."’
It cannot do this by saying that no person shall be
detained beyond the 26th of February, 1952, because that
means that persons arrested on the 27th of February, 1951,
can be kept under detention for a year while those arrested
on the 25th of February, 1952, can only be detained for one
day. That, in my judgment, is not what is meant by pre-
scribing a maximum period.
In the next place, when Parliament is authorised to do
this, it is expected to do so consciously and deliberately
after giving the matter due and mature consideration. It is
not possible to say that Parliament had this provision in
mind and intended to act under it when it merely fixed the
duration of the Act.. Had the matter been properly discussed
and placed before Parliament in the way it should have been,
it is conceivable that it might.have considered that the
maximum period of detention should not exceed, say, six
months though the duration of the Act should be one
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year. In other words, that persons could continue to be
arrested so long as the Act was in force but they could not
be kept under detention for more than six months. With the
utmost respect, I cannot agree that functions so solemnly
entrusted tO the care of Parliament under these fundamental
clauses can be discharged unconsciously.
In the third place, I cannot agree that these detentions
would come to an end with the expiry of the Act. The rule in
the case of temporary Acts is that-
"as a general. rule, and unless it contains some special
provision to the contrary, after a temporary Act has expired
no proceedings can be taken upon it, and it ceases to have
any further effect. Therefore, offences committed against
temporary Acts must be prosecuted and punished before the
Act expires." (Craies on Statute Law, 4th edition, page
347).
But transactions which are concluded and complete before
the Act expires continue in being despite the expiry. See
Craies on Statute Law, page 348, and 31 Halsbury’s Laws of
England (Hailsham Edition), page 5 13. I take this to mean
that if a man is tried for an offence created by a temporary
Act and is found guilty and sentenced to, say, five years’
imprisonment, he would have to serve his term even if the
Act were to expire the next day. In my opinion, the posi-
tion is the same in the case of detentions. A man, who is
arrested under a temporary detention Act and-validly ordered
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to be detained for a particular period, would not be enti-
tled to claim release before his time just because the Act
expired earlier.
Then again. The Act’ we are considering has special
provision to the contrary. Section 11 ( 1 ) empowers either
a State or the Union Government to order the detention of a
person "for such period as it thinks fit". If this provision
is not ultra vires, then the Act in express terms permits
the appropriate Government to order a detention which shall
endure beyond the life of the Act itself, and unless the
fundamental provisions of the Constitution can be called in
aid, there is nothing to prevent Parliament from enacting
such a
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law. Therefore, the mere fact that the Act under considera-
tion is to expire on the 26th of February, 1952, does not,
in my opinion, mean that detentions under it must necessari-
ly come to an end on that date. That in turn means that no
maximum period has been prescribed even indirectly.
Looked straight in the face, what does the decision of
the majority upholding the validity of section 11 (1) import
if it is pushed to its logical conclusion ? To me it spells
just this. The Constitution tells all persons resident in
the land--
"Here is the full extent of your liberty so far as the
length of detention is concerned. We guarantee that you will
not be detained beyond three months unless Parliament other-
wise directs, either generally or in your particular class
of case; but we empower Parliament to smash the guarantee
absolutely if it so chooses without let or hindrance, with-
out restriction. Though we authorise Parliament to prescribe
a maximum. limit of detention if it so chooses, we place no
compulsion on it to do so and we authorise it to pass legis-
lation which will empower any person or authority Parliament
chooses to name, right down to a police constable, to arrest
you and detain you as long as he pleases, for the duration
of your life if he wants, so that you may linger and rot in
jail till you die as did men in the Bastille."
In the absence of restrictions Parliament undoubtedly
has these powers, for it can legislate about preventive
detention. But if you remove the restrictions, what is left
of the fundamental right ? My concept of a fundamental right
is something which Parliament cannot touch save by an amend-
ment of the Constitution. The full content of the right can
be as small or as narrow as you please, but unless there is
a residue which can answer that test, there is to my mind
nothing fundamental. Now, I have no doubt that a fundamen-
tal right regarding the length of detention was intended to
be conferred. It would be pointless to make the provision
about three months and place it in the chapter on Fundamen-
tal Rights if that were not so; so also there would be no
point in the
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elaborate provisions regarding this in clauses (4) and (7).
A simple clause saying that no detention shall exceed three
months "unless Parliament otherwise directs" would have met
the case. It is therefore clear to my mind that something
fundamental regarding the length detention which Parlia-
ment could not touch save by amendment of the Constitution
was intended to be conferred. But if section 11 (1) is
upheld, what is there left which is beyond the reach of
Parliament ? Parliament has here in effect said that there
need be no general limit to the duration of detentions and
that lesser authorities can fix the duration in each indi-
vidual ease and are free to detain for as long as they
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please. If that is so, then what is there left of anything
fundamental regarding the maximum length of detention ? To
my mind, the whole object of the elaborate provisions in
clauses (4) and (7) is to place restraints on powers regard-
ing the length of indefinite and arbitrary detentions which
would otherwise be absolute.
For these reasons, I am of opinion that section 11(1) is
ultra vires. My only hesitation has been on the score of
Gopalan’s case(1). I have searched long and anxiously to
see whether this question is concluded there and whether my
hands are tied. After considerable study of the decision, I
have reached the conclusion that I am not bound.
There were six Judges there. The present Act, the
amending Act of 1951, was not under consideration, but
section 11 of the old Act,. which corresponds to section 11
(1)of the new, was considered. But only two Judges, namely,
my Lord the Chief Justice and my brother Mahajan, dealt with
this section directly. Their views are directly counter to
mine. They expressly hold that section 11 of the old Act is
intra vires. That means. that section 11 (1) of the present
Act would also have to be upheld on their view. But the
other four Judges did not discuss the vires of section 11 at
all. They concentrated their attention on sections 12 and
14 of the old Act. It is true my
(1) [1950] S.C.R. 88.
84
654
brother Das made a general observation at the end of his
judgment that in his view "the impugned Act is valid law
except as to section 14" but he did not expressly consider
section 11. In the circumstances, I do not think Gopalan’s
case concludes the matter.
It is perhaps ironical that I should struggle to uphold
these freedoms in favour of a class of persons who. if
rumour is to be accredited and if the list of their activi-
ties furnished to us is a true guide. would be the first to
destroy them if they but had the power. But I cannot allow
personal predilections to sway my judgment of the Constitu-
tion. As Lord Justice Scrutton remarked in Rex v. Home
Secretary
‘‘ It is, indeed, one test of belief in principles if you
apply them to cases with which you have no sympathy at
all.’’
and as Mr. Justice Holmes of the United States Supreme
Court said, speaking of the American Constitution,
"If there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the
principle of free thought--not free thought for those who
agree with us but freedom for the thought that we hate.."
I respectfully dissent from the majority view and con-
sider that section 11 (1) is ultra vires. It follows, in my
view, that the present detentions are bad. I am of opinion
that the petitioners in these cases are entitled to immedi-
ate release.
Petitions dismissed.
Agent for the petitioner in Petition No. 303: Subrahman-
yam.
Agent for the Petitioners in Petitions Nos. 618, 619,
621,622 and 624 to 631: V.P.K. Nambiyar.
Agent for the State of Madras: P.A. Mehta.
Agent for the State of Assam: Naunit Lal.
Agent for the Union of India: P.A. Mehta.
(1) (1923) L.J.K.B, 797.
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