Full Judgment Text
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PETITIONER:
G. M. SHAH
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT30/10/1979
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
TULZAPURKAR, V.D.
CITATION:
1980 AIR 494 1980 SCR (1)1104
1980 SCC (1) 132
ACT:
Jammu and Kashmir Public Safety Act, 1978 Sections 8(2)
and 8(3)-Scope of-"Law and Order," "Public Order," "Security
of the State"- Meaning of.
HEADNOTE:
The petitioner’s son (the detenu) was detained under
section 8(2) of the Jammu and Kashmir Public Safety Act,
1978 by an order of the District Magistrate, Anantnag,
Sections 8(1)(a)(1) and 8(2)2 of the Act state that the
Government or the District Magistrate may, if satisfied with
respect to any person that with a view to preventing him
from acting in any manner prejudicial to the security of the
State or the maintenance of the public order, make an order
directing that such person be detained.
The detenu was informed that the order of detention had
been passed with a view to preventing him from acting in any
manner prejudicial to "the maintenance of public order". The
grounds of detention amongst others stated that the detenu
had (i) indulged in subversive activities (ii) organised the
burning of religious places to create chaos in the State
(iii) disturbed the public order (iv) tried to elicit public
opinion in favour of a person sentenced to death and that
his remaining at large was prejudicial to the maintenance of
public order and also the "security of the State".
The petitioner challenged the grounds of detention as
vague.
Allowing the petition under Article 32 of the
Constitution and directing the release of the detenu
forthwith.
^
HELD: An attempt on the part of any citizen to elicit
public opinion in favour of a person who has been sentenced
to death and to save him from the gallows cannot be
considered as acting in any manner prejudicial to the
security of the State because it cannot be considered as an
attempt to overthrow or overawe the Government established
by law in the State. The fact that the detenu had sent hand-
bills and booklets to arouse the sentiments of the people
against the proposed execution of Z. A. Bhutto cannot be
considered as an act prejudicial to the security of the
State because the State of Jammu and Kashmir had nothing to
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do with the proposed execution. The other grounds are also
vague in so far as the question of security of the State is
concerned. [1111 B-E]
A combined reading of the order of detention and the
grounds furnished to the detenu shows that at the time when
the order was made, the District Magistrate either had no
material relevant to the security of the State on which he
could act or even if he had information of those grounds, he
did not propose to act on it. He, however, tried to support
the order of detention by stating in the course of the
grounds that by the detenu remaining at large, the security
of the State was likely to be prejudiced. [1111 G-H]
1105
The expressions "law and order", "public order" and
"security of the State" are distinct concepts though now
always separate. Whereas every breach of peace may amount to
disturbance of law and order, every such breach does not
amount to disturbance of public order and every public
disorder may not prejudicially affect the "security of the
State." [1112 A-B]
Romesh Thapper v. The State of Madras, [1950] S.C.R.
594 at p. 600 applied.
An act may affect law and order but not public order
just as an act may affect public order but not security of
State. It is for this reason that the Act defines the
expressions "acting in any manner prejudicial to the
security of the State" and "acting in any manner prejudicial
to the maintenance of public order’ separately. An order of
detention made either on the basis that the detaining
authority is satisfied that the person against whom the
order is being made is acting in any manner prejudicial to
the security of the State or on the basis that he is
satisfied that such person is acting in any manner
prejudicial to the maintenance of public order but which is
attempted to be supported by placing reliance on both the
bases in the grounds furnished to the detenu has to be held
to an illegal one. [1113 C-D]
Dr. Ram Manohar Lohia v. State of Bihar & Others,
[1966] 1 S.C.R. 709. Bhupal Chandra Ghosh v. Arif Ali &
Others [1974] 2 S.C.R. 277 and Satya Brata Ghose v. Arif Ali
JUDGMENT:
&
ORIGINAL JURISDICTION: Writ Petition No. 1125 of 1979
(Under Article 32 of the Constitution)
M. K. Ramamurthy and R. C. Pathak for the Petitioner.
K.K. Venugopal, Addl. Solicitor General, and Altaf
Ahmed for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J-At the conclusion of the hearing of
the above petition on October 24, 1979, we made the
following order:-
"The detenu Shabir Ahmed Shah who has been
detained by the order dated the 23nd May, 1979 of the
District Magistrate, Anantnag is directed to be
released forthwith. Reasons would follow."
The reasons in support of the above order are given
below:-
The above petition under Article 32 of the Constitution
is filed by the petitioner requesting this Court to quash
the order of detention bearing No. 299-304/ST dated May 23,
1979 passed by the District Magistrate, Anantnag in the
State of Jammu & Kashmir under section 8(2) of the Jammu &
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Kashmir Public Safety Act, 1978 (Act No. VI of 1978)
(hereinafter referred to as ’the Act’) directing the
detention
1106
of his (petitioner’s) son, Shabir Ahmed Shah (hereinafter
referred to as ’the detenu’). The relevant part of the order
of detention reads:
"Whereas I, Omar Jan, District Magistrate,
Anantnag, am satisfied that with a view to preventing
Shri Shabir Ahmed Shah s/o Ghulam Mohammad Shah r/o
Kadipora, Anantnag, from acting in any manner
prejudicial to the maintenance of public order, it is
necessary so to do;
Now, therefore, in exercise of the powers
conferred by section 8 (2) of the Jammu and Kashmir
Public Safety Act, 1978 (Act No. VI of 1978), I, Omar
Jan, District Magistrate, Anantnag hereby direct that
the said Shri Shabir Ahmed Shah be detained in Central
Jail, Srinagar.
Sd/-
(Omar Jan)
District Magistrate,
Anantnag".
The detenu was informed in pursuance of section 13 of
the Act that his detention had been ordered on the following
grounds:-
"1. You originally belonged to Young Man’s LEAGUE
(Hamid group) which was an anti-national and pro-Pak
organization of youngmen. You alongwith your erstwhile
associates were responsible for creating subversion and
danger to the maintenance of public order by organizing
antinational demonstrations and protests.
2. Later in the year 1975 when the Peoples’ League
was formed with the avowed object of challenging the
accession of the State of India and also for furthering
the cause and interest of Pakistan in the State, you
joined the party as an active member. You are currently
the General Secretary of the Peoples’ League. You and
Your party have shown open sympathy and have tried to
elicit public opinion in favour of Mohammad Maqbool
Bhat, a die-hard pro-Pak subversive element who has
been sentenced to death on two occasions for murder,
espionage and sabotage and is currently awaiting
execution. Pamphlets and posters have been issued by
the Peoples’ League in support of Mohammad Maqbool
Bhat.
3. In January and February, 1970 you joined
subversive elements of Sopore area and organized the
burning of reli-
1107
gious places in order to create chaos in the State. The
conspiracy was, however, unearthed by Baramulla Police
in time before much damage was done. You were arrested
in Case FIR No. 38/79 u/s 436 RPC P/S Sopore registered
in this connection.
4. Much before the execution of Mr. Z. A. Bhutto
in Pakistan, you and your party sent hand-bills and
booklets to arouse the sentiments of the people against
the State Govt. You alongwith your party members moved
secretly to maintain contacts with disgruntled and
undesirable elements in the valley and to arouse their
base sentiments in this connection and context.
5. In the third week of March, 1979, when some
unemployed youth started hunger strike at Lal Chowk,
Anantnag, you lent support to the CPI ML and other
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parties who were out to create disturbances and to
incite the youth to resort to violence and disorder.
6. On 29-3-1979 you alongwith your colleagues held
a meeting and decided to disturb public order in
Anantnag town in the context of pro-Bhutto sentiments
and demonstrations the next day.
7. Consequently on 30-3-1979 you alongwith your
associates moved stealthily to warn the shopkeepers to
close their shops. You also incited the people to put
road blocks and stop traffic. You and your associates
organized a strike in Anantnag College when it opened
on 30th. Later in the day you alongwith your associates
incited youths to resort to violence and create
disorder. Consequently a lot of violence including
murderous assault on the Police and the Magistracy took
place in Anantnag town in which many officials were
seriously injured. A case FIR No. 98/79 u/s
302/148/336/332/149/120-B RPC was registered. You went
underground and could not be arrested for quite some
time but you were arrested in the case later. You are
presently on bail in this case. On 7-4-1979 when
normalcy was being restored in Anantnag town and shops
were being opened, you alongwith your associates
appeared near Lal Chowk and threatened shop-keepers to
close shops. Their shouting and running had the effect
of creating tension in the
1108
town and many shops were closed. Police efforts to
arrest you could not succeed as you ran away in the by-
lanes and later went underground.
8. More recently you have been collaborating with
antinational, pro-Pak elements who come to hold secret
talks and links with you. You are a dangerous and
desparate character out to create chaos, disorder,
subversion and the like to achieve your ends. Your
remaining at large is prejudicial to the maintenance of
public order and also to the security of the State. I
am convinced that unless you are detained there is
every likelihood that you will continue to create
confusion in public minds and instigate people to
lawlessness and disturbance of public peace and
tranquility."
(The paragraphs are numbered by us for the purpose of
convenience).
It may be noted that whereas the order of detention
stated that it had been passed with a view to preventing the
detenu "from acting in any manner prejudicial to the
maintenance of public order", in the last paragraph of the
grounds furnished to the detenu, it was stated that "your
remaining at large is prejudicial to the maintenance of
public order and also to the security of the State". The
relevant part of section 8 of the Act under which the order
of detention is passed reads:
"8. Detention of certain persons.-(1) The
Government may-
(a) if satisfied with respect to any person that
with a view to preventing him from acting in any manner
prejudicial to-
(i) the security of the State or the maintenance
of the public order, or
(ii) the maintenance of supplies and services
essential to the community; or.
(b) .... ... ... ... ... ... ... ..
it is necessary so to do, make an order directing that
such person be detained.
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1109
(2) Any of the following officers namely:-
(i) Divisional Commissioners,
(ii) District Magistrates,
may, if satisfied as provided in sub-clauses (i) and
(ii) of clause (a) of sub-section (1), exercise the
powers conferred by the said sub-section.
(3) For the purpose of sub-section (1),-
(a) "acting in any manner prejudicial to the
security of the State" means making
preparations for using, or attempting to use,
or using or instigating, inciting, provoking
or otherwise abetting the use of force, to
overthrow or overawe the Government
established by law in the State;
(b) "acting in any manner prejudicial to the
maintenance of public order" means-
(i) promoting, propagating or attempting to
create, feelings of enmity or hatred or
disharmony on grounds of religion, race,
caste, community, or region;
(ii) making preparations for using, or attempting
to use, or using, or instigating, inciting,
provoking, otherwise abetting the use of
force where such preparation, using,
attempting, instigating, inciting, provoking
or abetting, disturbs or is likely to disturb
public order;
(iii) attempting to commit, or committing, or
instigating, inciting, provoking or otherwise
abetting the commission of, mischief within
the meaning of section 425 of the Ranbir
Penal Code where the commission of such
mischief disturbs, or is likely to disturb
public order;
(iv) attempting to commit, or committing, or
instigating, inciting, provoking or otherwise
abetting the commission of an offence
punishable with death or imprisonment for
life or imprisonment for a term extending to
seven years or more, where the commission of
such offence disturbs, or is likely to
disturb public order."
It is seen from section 8(1) (a) (i) and section 8(2)
of the Act extracted above that the Government or the
District Magistrate may, if satisfied with respect to any
person that with a view to preventing him
1110
from acting in any manner prejudicial to the security of the
State or the maintenance of the public order, make an order
directing that such person be detained. The expression
"acting in any manner prejudicial to the security of the
State" is defined in clause (a) of subsection (3) of section
8 of the Act as making preparation for using, or attempting
to use, or using or instigating, inciting, provoking or
otherwise abetting the use of force to overthrow or overawe
the Government established by law in the State. Clause (b)
of section 8(3) of the Act defines the expression "acting in
any manner prejudicial to the maintenance of public order".
The distinction between the two expressions lies in the fact
that while in the case of the former, the object of making
preparation or instigating or abetting the use of force etc.
should be with a view to overthrow or overawe "the
Government established by law in the State", in the case of
the latter, the object of the acts mentioned therein should
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be disturbance of public order.
As already mentioned, while the order of detention
states that it was being made with a view to preventing the
detenu from acting in any manner prejudicial to the
maintenance of public order, in the grounds disclosed to
him, it had been stated that the detenu’s remaining at large
was prejudicial to the maintenance of public order and also
to the security of the State. We shall now briefly refer to
the nature of the grounds furnished to the detenu. First we
shall deal with paragraphs (1), (3) and (5) to (7) of the
grounds. In paragraph (1) of the grounds, it is stated that
the detenu alongwith his erstwhile associates was
responsible for creating subversion and danger to the
maintenance of public order by organizing anti-national
demonstrations and protests. In paragraph (3) of the
grounds, it is stated that in January and February, 1979,
the detenu had joined subversive elements of Sopore area and
organized the burning of religious places in order to create
chaos in the State. In paragraph (5) of the grounds, it is
stated that in the third week of March, 1979, the detenu had
lent support to the Communist Party of India (ML) and other
parties who were out to create disturbances and to incite
the youth to resort to violence and disorder when some
unemployed youth started hunger strike at Lal Chowk,
Anantnag. In paragraph (6) of the grounds, it is stated that
on March 29, 1979, the detenu had alongwith his colleagues
held a meeting and decided to disturb public order in
Anantnag town. In paragraph (7) of the grounds, there is a
reference to the detenu alongwith his associates inciting
the youth to resort to violence and create disorder. It is
thus clear that paragraphs (1), (3) and (5) to (7) of the
grounds, there is no reference to any attempt made by the
detenu to use force to overthrow or overawe the Government
established by
1111
law in the State. Paragraphs (2), (4) and (8) of the grounds
are also in no way different. In paragraph (2) of the
grounds, although there is reference to the detenu joining
Peoples’ League, which had been formed with an avowed object
of challenging the accession of the State of Jammu & Kashmir
to India and also for furthering the cause and interest of
Pakistan in the State, the act attributed to the detenu is
that he had tried to elicit public opinion in favour of
Mohammad Maqbool Bhat who had been sentenced to death. An
attempt on the part of any citizen to elicit public opinion
in favour of a person who had been sentenced to death and to
save him from the gallows cannot be considered as acting in
any manner prejudicial to the security of the State because
it cannot be considered as an attempt to overthrow or
overawe the Government established by law in the State.
Similarly the act attributed to the detenu in paragraph (4)
of the grounds cannot be considered as an act prejudicial to
the security of the State as what is alleged therein is that
much before the execution of Mr. Z. A. Bhutto in Pakistan,
the detenu had sent hand-bills and booklets to arouse the
sentiments of the people. Although it is stated that the
detenu had tried to arouse the sentiments of the people
against the State Government, the alleged act on the part of
the detenu even if it was true could not be considered to be
prejudicial to the security of the State of Jammu & Kashmir
because the State of Jammu & Kashmir had nothing to do with
the proposed execution of Mr. Z. A. Bhutto. Ground No. 8
which lacks material particulars appears to be a general
one. These grounds are also vague in so far as the question
of security of the State is concerned.
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It is thus clear that none of the grounds supplied to
the detenu falls within the scope of clause (a) of section
8(3) (1) of the Act which defines the expression "acting in
any manner prejudicial to the security of the State". It is
further seen that even though it is stated in the grounds
that the District Magistrate was of the view that the detenu
remaining at large was prejudicial to the security of the
State also, he did not make the order with a view to
preventing him from acting in any manner prejudicial to the
security of the State. A combined reading of the order of
detention and the grounds furnished to the detenu shows that
at the time when the order was made, the District Magistrate
either had no material relevant to the security of the State
on which he could act or even if he had information of those
grounds, he did not propose to act on it. He, however, tried
to support the order of detention by stating in the course
of the grounds that by the detenu remaining at large the
security of the State was likely to be prejudiced.
1112
The expressions "law and order", "public order" and
"security of the State" are distinct concepts though not
always separate. Whereas every breach of peace may amount to
disturbance of law and order, every such breach does not
amount to disturbance of public order and every public
disorder may not prejudicially affect the "security of the
State". This is borne out from the observations made by
Patanjali Sastri, J. in the decision of this Court in Romesh
Thappar v. The State of Madras (1) which are as follows:-
"As Stephen in his Criminal Law of England
observes: Unlawful assemblies, riots, insurrections,
rebellions, levying of war, are offences which run into
each other and are not capable of being marked off by
perfectly defined boundaries. All of them have in
common one feature, namely that the normal tranquillity
of a civilized society is in each of the cases
mentioned disturbed either by actual force or at least
by the show and threat of it." Though all these
offences thus involve disturbances of public
tranquillity and are in theory offences against public
order, the difference between them being only a
difference of degree, yet for the purpose of grading
the punishment to be inflicted in respect of them they
may be classified into different minor categories as
has been done by the Indian Penal Code. Similarly, the
Constitution, in formulating the varying criteria for
permissible legislation imposing restrictions on the
fundamental rights enumerated in article 19(1), has
placed in a distinct category those offences against
public order which aim at undermining the security of
the State or overthrowing it, and made their prevention
the sole justification for legislative abridgement of
freedom of speech and expression, that is to say,
nothing less than endangering the foundations of the
State or threatening its overthrow could justify
curtailment of the rights to freedom of speech and
expression, while the right of peaceable assembly "sub-
clause (b)" and (c) right of association "sub-clause
(c)" may be restricted under clauses (3) and (4) of
Article 19 in the interests of "public order," which in
those clauses includes the security of the State. The
differentiation is also noticeable in Entry 3 of List
III (Concurrent List) of the Seventh Schedule, which
refers to the "security of a State" and "maintenance of
public order" as distinct subjects of legislation. The
Constitution thus requires a line to be drawn in the
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field of public order or tranquillity
1113
marking off, may be, roughly, the boundary between
those serious and aggravated forms of public disorder
which are calculated to endanger the security of the
State and the relatively minor breaches of the peace of
a purely local significance, treating for this purpose
differences in degree as if they were differences in
kind."
As observed by Hidayatullah, J. (as he then was) in Dr.
Ram Manohar - Lohia v. State of Bihar & Ors. one has to
imagine three concentric circles, in order to understand the
meaning and import of the above expressions. ’Law and order’
represents the largest circle within which is the next
circle representing "public order" and the smallest circle
represents "security of State". It is then easy to see that
an act may affect law and order but not public order just as
an act may affect public order but not security of State. It
is in view of the above distinction, the Act defines the
expressions "acting in any manner prejudicial to the
security of the State" and "acting in any manner prejudicial
to the maintenance of public order" separately. An order of
detention made either on the basis that the detaining
authority is satisfied that the person against whom the
order is being made is acting in any manner prejudicial to
the security of the State or on the basis that he is
satisfied that such person is acting in any manner
prejudicial to the maintenance of public order but which is
attempted to be supported by placing reliance on both the
bases in the grounds furnished to the detenu has to be held
to be an illegal one vide decisions of this Court in Bhupal
Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v.
Arif Ali & Ors(3).
The order of detention is, therefore, liable to be
quashed and the detenu is entitled to be set at liberty. The
petition is accordingly allowed.
In view of the above conclusion, we have not gone into
the other contention urged by Mr. M. K. Ramamurthi that many
of the grounds furnished to the detenu being vague, the
order of detention cannot be supported even on the ground
that it had been passed with a view to preventing the detenu
from acting against public order.
N.K.A. Petition allowed.
1114