Brahmeshwar Prasad
v.
State Of Bihar
(High Court Of Judicature At Patna)
Criminal Miscellaneous No. 977 Of 1949 | 14-02-1950
( 1. ) This is an application under Section 491, Criminal P. C. and also under Article 226, Constitution of India, made on behalf of one Brahmeshwar Prasad through and by his brother Rudreshwar Prasad. This detenu was a teacher in the Naugachia High English School. He was arrested on 3rd March 1949 under Section 161, Criminal P. C., and lodged in the Bhagalpur Camp Jail where he has been in custody ever since. On 13th March, there was a detention order under Act V [5] of 194
7. That Act having been declared ultra vires and having been replaced by an Ordinance, there was a fresh detention order under the Ordinance on 6th June. That Ordinance in turn, was declared-ultra vires by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made and served on 6th July. On 6th December, the present application was preferred. A rule was issued, and 16th January was fixed for hearing. It eventually came up on 18th January, this Court having in the meanwhile held that the provisions in the Ordinance for reference to an Advisory Council and report by that Council, were mandatory, and non-compliance would make the detention illegal. The Government Advocate, however, stated that a fresh detention order had been passed under Sub-section (1) (a) of Section 2, Bihar Maintenance of Public Order Act (Bihar Act in [3] of 1950), which had replaced the Ordinance on 4th January 1960, and he asked for a fresh adjournment to prove that order. He was given an adjournment for seven days, and it has been established that in facts a fresh detention order under Act in [3] of 1960 was passed on 16th January, and was served on 16th.
( 2. ) By the time the matter once more came up for hearing, the New Indian Constitution had come into force, and Mr. Basanta Chandra Ghose on behalf of the petitioner asked that the application should be treated as one also under Article 326 of the Constitution, and contended that Act III [3] of 1960, at least in so far as it related to detention, had become void on 26th January i960, as being repugnant to certain of the provisions prescribing fundamental rights in Pact III of the Constitution, and consequently the detention, being under a void Act, had since the 26th January become illegal.
( 3. ) Article 13 (1) of the Constitution provides:
"All laws in force in the territory ot India immediately before the commencement of this Constitution, in so far aa they are inconsistent with, the provisions of this Part, shall, to the extent of such inconsistency, be void."
Mr. Ghosha contention is that there is an inconsistency, and that the inconsistent provisions ara not severable from the remaining provisions with regard to detention,
( 4. ) In order to understand his argument, it is necessary to set out briefly the scheme of the Act in relation to detention. Under Section 1 (2), the Act is to remain in force for a period of two years from the date of its commencement. Under Section 2 (1) (a) the Provincial Government, if satisfied with respect to any particular person that, with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary so to do, may make an order (a) directing that he be detained, and under Section 2 (5) so long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be removed to and detained in such place and under such conditions, including conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Provincial Government may from time to time by general or special order specific
( 5. ) Under Section 5 (3) the Provincial Government shall constitute an Advisory Council, whenever necessary, consisting of not less than three members who are or have been or are qualified to be appointed as Judges of a High Court. Under Section 5 (1) within 15 days of the service of the detention order, the grounds on which the order has been made are to be communicated to the detenu as far as such communication can be made without disclosing facts which the authority considers would be against the public interests to disclose, and such other particulars are to be communicated as in the opinion of the detaining authority are sufficient to enable the detenu to make, if he wishes, a representation against the order.
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6. ) The detenu may, within 10 days of receipt of the grounds, make a representation, and it is the duty of the authority to inform him of this right and afford him the earliest practicable opportunity of making this representation. There is, however, a proviso that neither the detention order nor the detention shall be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to the detenu.
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7. ) Under Section 6 (2) the Provincial Government shall, within six weeks of the service of the detention order, place before the Advisory Council the grounds on which the order has been made and the representation, if any, together with any other relevant material which the Provincial Government may consider necessary.
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8. ) Under Section 5 [4] the Advisory Council after considering the materials and, if necessary, after calling for further information is to submit a report to the Provincial Government within 12 weeks of the date of the service of the detention order.
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9. ) Under Sub-section (5), after considering the report of the Advisory Council the Provincial Government may confirm, modify or cancel the detention order, and under Sub-section (6) all particulars contained in any correspondence between the Government and the Council and the report made by the Council shall be confidential and, notwithstanding anything contained in any law for the time being in force, no Court shall be entitled to require any public servant to produce before it any of the said documents.
( 10. ) It will be noticed that the Government only has to consider the report, It does not have to act in accordance with it. So, even if the Council advises that there are no sufficient grounds for detention, the Government may still confirm the detention order and the Court is also prevented from looking into this matter by examining the report.
( 11. ) Under Section 4 (1), it is provided that the detention order shall be in force for a period not exceeding six months from the date on which it is confirmed or modified under Section 5 (5), though the Government may at any time revoke the order. Then it is farther provided that, if in the opinion of the Government it is necessary or expadient to do so, it may at any time before the expiry of six months and after giving an opportunity for a further representation and making a fresh reference to the Advisory Council and considering its report, direct that the order shall continue in force for a further period of six months from the date on which, but for such direction, it would have expired, and thereafter if and so often as it is again extended by further a similar direction made in the same manner.
( 12. ) I have dealt with these provisions in what seems to me a more logical order than that which obtains in the Act. It will be clear that actually there is no express limit of time within which a case has to be referred to the Advisory Council. Government has to make the reference within six weeks of the service of the order it is true, but no period is prescribed within which the service must be made, and the validity of the detention order has not been made to depend upon service, as is clear from Section 2 (5). The same remarks apply to the report of the Advisory Council. This is to be made within 18 weeks from the date of the service of the order, but again there is no provision under which the order has to be served promptly. Thirdly, the Government only has to consider the report of the Council and need not act in accordance therewith, so that, under the Act, detention may legally continue without any report by the Council that it is, in its opinion, justifiable. It is so to continue ordinarily up to six months from the date of confirmation. That is to say, assuming that the confirmation is passed directly upon receipt of the Councila report, it will continue for six months plus 13 weeks from the date of the service of the order. But to this has to be added the indefinite period before service of the order and also the indefinite period which the Government may take under Section 5 (6) to consider the report of the Council before confirming it, and, as no time limit is fixed, the Act leaves it open to the Government to extend the period by sitting indefinitely upon the report of the Advisory Council, and it is impossible for the Court to examine whether there has been any excuse or justification for so doing. Finally, still without any support in the opinion of the Advisory Council, the Government may renew and renew () the order for successive periods, so that the detention may be made to continue for the full two years for which the Act is to remain in force.
( 13. ) Mr. Ghogh argues, and, in my opinion, quite correctly argues, that these provisions are completely inconsistent with those contained in Article 22, Clauses (4), (5) and (6) of Part III of the Constitution. Article 22 (i) says :
"No law providing for preventive detention shall authorise 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 sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7)."
( 14. ) That is to say, no law can authorise detention for a period longer than three months except subject to condition (a) or condition (b). Condition (b) cannot enter into the picture in the case of a law made before the Constitution comes into force, and, in any event, Act III [3] of 1960 clearly provides for detention up to two years irrespective of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7). It also authorises detention up to periods much longer than six months irrespective of whether the Advisory Council has or has not reported within three months that there is sufficient cause for detention, or indeed reported within three months at all. As I have pointed out, if service is delayed, the report of the Council may not be due until after the expiry of three months.
( 15. ) Thus there is no getting away from the fact that the detention provisions in Act III [3] of 1960 are completely inconsistent with the fundamental rights prescribed in Article 22, Clause (4), and consequently, directly the Constitution came into force these provisions became void under Article 13 (1). The learned Government Advocate has not denied, and he could not deny, the inconsistency, but has adopted three lines of reply; first, that steps were taken successfully to prevent the Act becoming void ; secondly, that the inconsistent provisions are severable from the main provision for detention, which, therefore, remains valid; and, thirdly, that, irrespective of whether the detention provisions in the Act became void or not, the continued detention of the petitioner is valid under and by reason of an order made by the President under Clause (7) of Article 22. I shall deal with these conditions in turn.
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6. ) The learned Government Advocate asked for time to prove that the President bad made an order under Clause (7) which removed the inconsistency, and so prevented the provisions from becoming void. We gave sufficient time to produce such an order with the result that what purports to be a printed copy of an order of the President together with a cyclostyled copy of what purports to be a letter from the Joint Secretary to the Government of India to the Chief Secretary to the Government of Bihar has been produced. I reproduce the first in full:
"MINISTRY OF LAW. New Delhi, the 26th January 1950. No. C. O. 8.-- The following Order made by the President is published for general information : THE PREVENTIVE DETENTION (Extension of Duration) ORDER. 1950. In exercise of the powers conferred by Sub-clauses (a) and (b) of Clause (7) of Article 22, of the Constitution of India read with Article 373 thereof, and of all other powers enabling him in that behalf, the President is pleased to make the following order, namely: -- 1. (I) This order may be called the Preventive Detention (Extension of Duration) Order, 1950
. (2) It shall come into force at once. 2. Where in any class of cases or under any circumstances specified in any law providing for preventive detention in force at the commencement of the Constitution of India (hereinafter referred to as the Constitution) any person was, immediately before such commencement or ia at any time thereafter, in detention in pursuance of an order made under such law, such person may be detained for a period longer than three months under such law without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clauses (a) of Clause (4) of Article 22, of the Constitution. 3. The maximum period for which any person, as is referred to in para. 2, may he detained, shall in the case of a person in detention immediately before the commencement of the Constitution, be three months from such commencement, and in the case of a person detained in pursuance of an order made after such commencement, be three months from the date of such order. Rajendra Prasad, President."
As will be seen, it is dated 26th January 1950, and it is numbered C. O.
8. But there has also been placed before us the Gazette of India (Extraordinary) of 26th January 1950, containing a precisely similar order also dated 28th January, and also numbered C. O. 8, but purporting to be signed not by Rajendra Prasad, President, but C. Rajagopalachari, Governor. General. The letter to which I have referred is to the effect that through an oversight an in correct copy of the Ministrys notification no. C. O. 8 was sent the previous day. The mistake which orginally occurred in the Gazette Extraordinary dated 26th January 1950, containing this order was now being corrected by ihe Press by the issue of an errata slip. Two correct copies of the order were being sent for the use of the State Government. The copies of the order sent the previous day were to be destroyed.
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7. ) This letter has not been properly proved, nor has the printed order purporting to be signed by the President. Under Section 78, Evidence Act, Acts, Orders or Notifications of the Executive Governments may be proved by any document purporting to be printed by order of such Government. Therefore, the original Notification in the Gazette of India, of the 26th signed by the Governor-General may be said to be properly proved, but the document signed by the President is not headed "Gazette of India". There is nothing to show if it has ever been printed in the Gazette of India. It purports to be an order of the President, but it does not purport to have been published by order of Government. It might have been printed by any one and it is, therefore, no proof of the order of the President. Such an order, if not proved under Section 78, could be proved of course by the production of the original or by production of a certified copy under Section 77, Evidence Act, or possibly even by an affidavit by a responsible official. But none of those courses have been adopted. We were asked by the learned Government Advocate to give a farther adjournment for a week to produce the necessary proof. But for reasons which will appear we did not think it desirable or necessary to do so, particularly as this case had already been adjourned on several occasions despite the protests of Mr. Ghosh. The position is this. Either the order was originally made and signed by the President, and there wag a mere mistake in printing it ia the Gazette, or it was orginally mistakenly signed by the Governor General and correctly printed, but on discovery of the mistake it was re-signed by the President and reissued. In the circumstances I will consider both suppositions, and, as, in my opinion upon neither supposition is the Act saved, it makes no difference, (I shall note that after this judgment had been completed, namely, on Monday 13th February, a certified copy of the Presidents order C. O. 8 has been placed before us).
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8. ) Article 22(7) is as follows:
"(7) Parliament may by law prescribe - (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under Sub-clause (a) of Clause (4)."
It has to be read with Article 873, which says that
"until provision is made by Parliament under Clause (7) of Article 22, or until the expiration of one year from the commencement of this Constitution, whichever is earlier, the said article shall have effect as if for any reference to Parliament in Clauses (4) and (7) thereof there were substituted a, reference to the President and for any reference to any law made by Parliament in those clauses there were substituted a reference to an order made by the President."
Therefore, for the words in Clause (7) "Parliament may by law prescribe" we may read "the President may by order prescribe". I will proceed first on the assumption that the President did in facts make the order on the 26th. In my judgment no such order made by bim under Clause (7) could in any way prevent an Act becoming void under Article 13 (1), and this for two reasons. The first and primary reason is that under Article 13(i), quite clearly, provisions become void, if they become void at all, directly and instantaneously with the Constitution coming into force, whereas an order by the President can only originate and become valid after the Constitution has come into force. There can be no such order of the President except as a consequence of the Constitution having come into force and given him power to make it. That is to say, such order must be logically subsequent to the voidability which the coming into force of the Constitution itself affects. That, in my opinion, follows directly and logically from the laws of cause and effect. But it is in fact not necessary to enter into philosophical questions of the infinite divisibility of time and the nature of simultaneity, because in fact we are here concerned with a time lapse of over ten hours. The Constitution came into force on the midnight of 25th, and the Act, if it became void at all, became void then. But the President did not enter upon his office until he took the oath on 26th at 10-16 A. M.
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9. ) As to these propositions, there can be no question. Article 394 of the Constitution provides that certain articles, with none of which we are concerned, shall come into force at once, and the remaining provisions shall come into force on 26th January 1950. Article 367 (1) makes the General Clauses Act, 1897, applicable, and the General Clauses Act provides in Section 5 (3) that, where an Act is to come into force on a certain day, it shall come into force at midnight of the preceding day. That is to say, the day begin directly after midnight of the preceding day. Under Article 60 the President must make and subscribe an oath before entering upon hig office. The same thing is apparent from the Constitution (Removal of Difficulties) Order no. I published with notification no. C. O. 1 in the Gazette of India (Extraordinary) of 7th January 1950, which prescribes that such person as the Constituent Assembly shall have elected as President shall, before entering upon his office, make and subscribe the oath or affirmation prescribed in Article 60. Notification no. P. 35/4/49 Public, published in the Gazette of India (Extra, ordinary) on 26th January 1950, shows that the Governor-General proclaimed the cow Constitution at 10-15 A. M. on 26th January. After that the President took the oath, and took his seat as President of India and assumed the office. Quite clearly the President could make no valid order until after 10.15 A. M. on 26tb, whereas those provisions in Act III [3] of 1950 repugnant to the Constitution became void directly after midnight on 25th. It is quite apparent that the subsequent order of the President could not restore an Act which had already become void and ceased to exist. Nor does his order purport to do so.
( 20. ) My own opinion is that Article 22 (7) was never intended to be a means of avoiding the operation of Article 13 (1). It is a provision for action not before, but after the Constitution has come into force, and it was intended for prospective, and not retrospective operation ; and this is particularly apparent if we read it in connection with Article 22 (4) (b). In other words, it relates not to Article 13 (1), but to Article 13 (2), which says:
"The State ahall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention, be void."
After Parliament or the President has in effect by order modified the provisions of Article 22 (4), then a law may be made which perhaps otherwise would have been void or ultra vires under Article 13 (2), but no order or law made under Article 22 (7) can operate upon a law which has already become void under Article 13 (1).
( 21. ) The second reason why the order of the President under Article 22 (7) cannot save the Act in any view is that even in the light of that order, even taking Article 22 (4) as modified by that order, there is still a clear repugnancy. Under Clause 3 of the order, the maximum period for which any such person, as is referred to in para 2, may be detained shall, in the case of a person in detention immediately before the commencement of the Constitution, be three months from such commencement, so that Article 22 (4) (b) as so modified becomes in effect : No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless it also provides that such person shall not be detained for more than three months after the commencement of the Constitution. But Act III [3] of 1960 authorises detention for a much longer period without any such proviso or safeguard.
( 22. ) Now let us examine the position on the assumption that the order under Article 23 (7) was made not by the President, but by the Governor. General. The first difficulty is that, though signed by the Governor-General, it does not purport to bo an order by the Governor-General. The recital is :
"In exercise of the powars conferred by Sub-clauses (a) and (b) of Clause (7) of Article 22 of the Constitution of India read with Article 373 thereof and of all other powers enabling him in that behalf, the President is pleased to make the following Order."
Therefore, it is still an order of the President, even though signed by the Governor-General.
( 23. ) Undoubtedly the Governor-General could by a suitable order have removed the whole difficulty. Under Article 892 (1).
"the President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during each period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient."
And under Article 392 (3) "the powers conferred on the President by this article shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India." The Governor-General under these provisions could have, before the commencement of the Constitution, so modified it as to prevent any repugnancy arising under Article 22 (4) and any voidability under Article 13 (1). But in that case he would have to make that order in his own name---as his own order and not as an order of the President. In the second place, this is not what he purported to do, and the order, though it contains a reference to Clause (7) of Article 22 and Article 373 and all other powers generally, contains no reference to Article 392, and, thirdly, the Government, having definitely taken the position that there was in fact no order of the Governor-General, but only a clerical error in printing the Gazette, cannot, in the circumstances, rely upon any order of the Governor-General.
( 24. ) There was another way in which it has been suggested the difficulty could have been avoided, namely, by modification by the President of Act III [3] of 1950 under the provisions of Article 372 (2), so as to bring it into line with the provisions of Article 22. It is unnecessary to examine this since it is not contended that any such action has been taken by the President. But it may be noted that here the difficulty would still remain that, the Constitution having come into force before the President assumed office, the law had lapsed and become void before the President could pass any order, and the President under Article 372 (2) can clearly only adapt and modify a law which is still existing and valid, and cannot recreate something which is already gone. We have to read the various provisions of the Constitution so as to make them consistent, if possible, and therefore Article 372 cannot have been intended to preserve laws or portions of laws which Act. 13 (1) renders void. There is no inconsistency between Article 13 (1) and Article 373 (1) if we regard Article 372 as applying to only such cases as do not come within the mischief of Article 13 (1) and that this is the correct interpretation is clear from the use of the words "subject to the other provisions of this Constitution" in Article 372 (1), and the use of the words "in force" in Article 372 (2).
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25. ) I now come to the second line of reply of the learned Government Advocate, namely severability.
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6. ) Put crudely, the argument comes to this. If a law provides for detention of six months, but the Constitution says that no law shall provide for detention for more than three months, then that law is not wholly void, but can be regarded as a good law as regards detention up to three months. The fallaciousness of such an argument is at once apparent. It would mean, not severing the bad portion of the law from the good and leaving the latter, but substituting a new and different law in place of the old. In fact it would mean legislation by the Court and the abolition of one law and the substitution for it of a flew and different law.
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7. ) In particular, however, the learned Government Advocate says: Let us blot out and remove all the provisions which contain inconsistency--the provisions for duration and the Advisory Council--and there still remains the bare provision in Section 2 (i) (a):
"The Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting. In any manner prejudicial to the public safety and the maintenance ot public order it is necessary so to do, may make an Order (a) directing that he be detained."
He suggests that this is severable, and, though it fixes no duration for the detention, it can be interpreted consistently with the Constitution as authorising detention up to three months, and it, therefore remains valid. It does not in terms purport to authorise detention for more than three months, but leaves the period of detention entirely indefinite, and it is, therefore, not inconsistent with Article 22 (4).
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8. ) The difficulty, however, is that the other provisions of the Act containing a number of safeguards form an integral part of the legislation. A provision for bare detention for three months without any safeguards at all is something entirely different from what the Legislature actually enacted in Act III [3] of 1950. The Legislature obviously did not intend that a man should be detained even for three months without certain safeguards being taken. For example, as I have pointed out, under Section 5 (4) the Advisory Council is to submit its report within 12 weeks of the date of the service of the order, and the Government is to consider that report. True, no period is fixed for service, but presumably the Legislature intended that the order should be served as soon as the man is detained. Twelve weeks, it is to be noted, is less than three months. Therefore, the Legislature never enacted that a man could be detained for even three months without certain steps being taken within that period as safeguard, so that here again, if we adopt the course suggested by the learned Government Advocate, we are in fact legislating. We are substituting a different law for the impugned law and, be it noted, we are substituting a definitely harsher law. Who is to say that the Legislature would ever have agreed to the enactment of such a law The rule and test as to severability is, I apprehend, this. If by taking away the bad parts, you in any way modify or alter what is left then the bad parts are not severable. That, however, is what we are asked to do. The Act has to be taken as a whole. The provisions for detention enacted by the Legislature cannot be separated from the safeguard 9, and the safeguards are inextricably mixed up with the provisions for duration. You cannot tear an Act to pieces, take away the bad pieces, and then build a different structure by putting together the pieces which re-main. That is legislation, and it is legislation on lines which the Legislature itself, had it been put to it, might never have approved. I gravely doubt indeed whether the Legislature would ever have consented to pass a bare Act for detention without any specification of duration, without any provisions for safeguarding the rights of the subject, Yet that is just what would remain in the present case if we take away the inconsistent provisions. I am, therefore, clearly of opinion that this is a case where severance is not possible.
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9. ) There remains the third argument of the learned Government Advocate, namely, that the order of the President validates the detention pro-prio vigore, in short, that the President has himself enacted legislation for detention which can stand by itself. In my opinion, the position has only to be thus clearly stated to refute the argument. The President never purported to do anything of the sort, nor has he any power to do so. Article 23 (7) merely entitles him to specify circumstances and define classes in which a person may be detained under any pre-existing law for preventive detention, but without those limitations, imposed by Article 22 (4). It does not authorise making a new detention law that can stand by itself. Quite clearly, if, where the President makes the order, there is no detention law in force, the President cannot make one, nor, as I have said, has he purported to do so. He can merely provide for the extension in time of a detention under some subsisting law, and his order ia in fact headed "The Preventive Detention (Extension of Duration) Order."
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30. ) Thus, in my judgment, every line of reply to the contentions of Mr. Ghosh fails, and there is no getting away from the fact that the detention provisions of the Act, and with it the power to detain, lapsed on 26th January. Under Article 21 of the Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law, and the detention cannot legally continue for one moment after the lapse of the law.
( 31. ) As this case will almost inevitably go to the Supreme Court, it is advisable to deal briefly with Mr. Ghoshs other and further contentions. He has argued that the order of the President under Article 22 (7) is a bad order because thereunder the President has delegated his power, and has not himself specified clearly the circumstances and the classes of cases in which his order is to operate. I do not consider that contention is sound.
( 32. ) Mr. Ghosh further argues that the proviso to Section 5 (1) of Act III [3] of 1960 is inconsistent with the provisions of Article 22, Clause (5). The proviso says that neither the detention order nor the detention shall be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication of the grounds and particulars. Article 22 (5) says that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounda on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The only qualification is in Clause (6) that facts need not be disclosed which such authority considers to be against the public interest to disclose, Tbe proviso, however, goes much further. Under the proviso, the detention is still valid even if the grounds communicated are to vague and indefinite as to amount to no ground at all and as to afford no opportunity to make a representation. For, example, under the proviso, the detention would still be valid even if the only ground given is "we do not like your face." Clause (5) of Article 22 is mandatory, and clearly means that detention in violation of this provision becomes illegal. But the proviso makes the detention in violation of this provision nevertheless legal.
( 33. ) In my opinion, these contentions are correct, and I consider that the proviso, whatever may have been the case before 26th January, became void from 26th January. I also consider, however, that the provisions are clearly severable. Remove the proviso, and the real of the Act remains unchanged and fully operative. Mr. Ghosh concedes that he can cite no decision in which it has been held that the proviso is an integral part of the Act and is not severable.
( 34. ) If the proviso goes, we are simply taken back to the position as laid down by the Full Bench of this Court in Nek Mohammad v. Province of Bihar, A I. R
. (30) 1949 Pat. 1 : (so Cr. l. j. 44 P. B.), namely, that we have to examine the grounds to see that they are sufficiently clear and definite to enable a representation to be made. The grounds were served upon the detenu on 26th January, within 15 days of the order, and they have been placed before us. Mr. Ghosh on the analogy of certain Division Bench decisions of this Court, contends that they are vague and indefinite. I cannot agree with him. They are set out at great length and in great detail partially in a printed document extending over two foolscap pages, and supplemented by a passage in type, relating to this particular detenu. It is that stated that he is an important member of the Communist Party of India, and the document then goes on to state that the Communist Party of India has adopted a highly secret programme of overthrowing through violence, the Government of India, as constituted by law, and that this plan haa been put into operation. It is stated that Government have information that Communist cells functioning in Bihar have received secret directives to build up illegally large stocks of firearms and ammunition, to smuggle explosives on a large scale, and to collect implements for breaking jails, and that there is intention to exploit the Services to turn against Government so as to bring about a complete collapse of the Government and the Administration. Then it is said that Government had information regarding the Partys plan to carry out sabotage of important industrial and other installations. It is said that in recent weeks mobs under Communist influence have violently attacked police escorts in attempts, sometimes successful to rescue Communists from custody, and Government has reasons to suspect strongly that the Party has already resorted to murder for defection from and acting against the interest of the party. It is unnecessary to set out in detail the rest of the printed portion. The typed portion goes on to say that Shri Brahmeshwar Prashad has been a very active member of the Communist Controlled Students Federation, and, although a school teacher, he continued to be one of the active members of the Communist Party, and Government is satisfied that, using his somewhat special position in the village community as a school master, he has been responsible for secretly carrying on propaganda in the area between Naugachia and Bihpur explaining the Partys programme to overthrow Government through violence. Even on his arrest he delivered an inflammatory speech to the students, who had assembled urging them to carry on the activities of the Communist Party of India during his absence.
( 35. ) I am not in the least concerned with whether these allegations, either with regard to the Communist Party generally or with regard to Brahmeahwar Praead in particular, are true or false. But they are certainly quite clear and definite and sufficient to enable a representation to be made, and indeed Mr. Ghosh tells us that the detenu has already made a detailed representation, and that in itself indicates, to my mind, that the grounds furnished are not vague.
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6. ) Therefore, I am of opinion that, were the detention otherwise legal, the detenu would sot be entitled to release on the ground of any vagueness or insufficiency in the grounds and particulars furnished.
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7. ) Next, Mr. Ghosh argues that the fresh order against the detenu made under Act III [3] of 1960 on 16th January was not bona fide because it wag made only because the Government had reasons to believe that this Court was going to declare that the detention was illegal for non-compliance with the mandatory provisions in the Ordinance regarding the Advisory Council. Even upon the assumption that Government did make this fresh order because it was anticipated that the Court was going to declare the detention illegal, that does not make the order mala fide or a fraud on the statute. If Government was of opinion that the continued detention of this man was necessary for the maintenance of public order, it was certainly quite natural and proper, as soon as any irregularity was realised in the detention, to take steps to make it proper and regular. What else could Government be expected to do in the circumstances Such circumstances do not justify the inference that Government is merely attempting to frustrate and override the orders of this Court. They rather suggest that Governments sole object is to secure the detention and custody of a man they, rightly or wrongly, regard as dangerous.
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8. ) Mr. Ghosh further argues that the provisions of Section 5 (6) of Act III [3] of 1950 are inconsistent with Article 23 of the Constitution. The effect of Article 22 (4) is that no one is to be detained for more than three months unless in accordance with a report of the Advisory Council that there is sufficient cause for such detention. That necessarily means that the Court, in order to examine whether a detention is in accordance with this mandatory provision must be enabled to see and examine the report of the Advisory Council. But Section 5 (6) of the Act says that all particulars contained in any correspondence between the Provincial Government and the Advisory Council and the report made by the Advisory Council shall be confidential, and, notwithstanding anything contained in any law for the time being in force, no Court shall be entitled to require any public servant to produce before it any of the said documents. In short, this provision is designed to prevent the Court from ascertaining if detention beyond three months is in accordance with the report of the Advisory Council. As such it appears to be calculated to evade the safeguard laid down as a fundamental right in the Constitution, and there is an inconsistency which renders it void. It is, however, in my opinion, severable, and the rest of the Act could stand unaltered after its excision. This would merely mean that the Court, despite this provision, could call for and examine the report, but it would not make the detention illegal if found to be in accordance with that report.
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9. ) As, in my view, for the reasons given in the first part of this judgment, the detention of Brahmeshwar Prasad has become illegal since 26th January, I would order his immediate release from custody.
( 40. ) This rule relates to an application filed under Section 491, Criminal P. C., on behalf of the petitioner. The petitioner has been in detention ever since 4th March 1949 under successive orders of detention passed by Government. He filed this application in December 1949 but the application was ordered to be put up for admission after the decision of criminal Miscellaneous no. 781 of 1949 which has since been disposed of on 23rd December 194
9. Eventually this application was admitted and rule issued on 4th January 1950, returnable within ten days. When the application again came up for hearing on 18th January 1950, it was stated by the learned counsel for the Crown that in this case a fresh order of detention has been passed against the petitioner under Clause (a), Sub-section (1) of Section 2, Bihar Maintenance of Public Order Act, 1949 (Bihar Act in [3] of 1950). The petitioners counsel appeared to have no instruction on the point in regard to this fresh order of detention, and counsel for the Crown wanted time to intimate to the Court if this fresh order of detention had been served on the petitioner or not. He was accordingly allowed time to do so.
( 41. ) The petitioner alleges that his detention is illegal, and that the order of detention passed against him under Section 2 (1) (a) of Ordinance IV [4] of 1949 had spent its force, and in any case the mandatory provisions of the law not having been complied with, it was not open to Government to detain him any further. In view of the fact that a fresh order, of detention under Bihar Act III [3] of 1950 had been passed on the petitioner, the question whether or not his detention under the previous order passed under ordinance IV [4] of 1949 is not of much importance. If the matter had rested there, we would have had to hold that the detention of the petitioner is not illegal because of this fresh order passed under Bihar Act III [3] of 1950. A Bench of this Court, when dealing with a similar question in Criminal Misc. no. 30 of 1950 to which I was also a party, held:
"The order, prima facie, is a regular order under the provisions of the Act, and it is, therefore, necessary for the petitioner to show that what happened previously in some way operates as a bar to prevent the legality of the subsequent detention order."
It was also held in that case that fresh detention orders can be passed as it was clear from the provisions of Section 2 (1) (iii) of the Ordinance and those of Section 4 (i) (iii) of the Act. It is true that in that case a question was raised as to Bihar Act III [3] of 1950 being ultra vires in view of the fact that Section 2 (6) to (16) and Section 8 of the Act contain certain provisions dealing with the case of an absconder which were alleged to be repugnant to the procedure laid down in the Criminal Procedure Code. The Court considered irrelevant to answer this question as the provisions referred to therein were entirely separate and severable from the provisions which relata to the validity of the order of detention, and the procedure prescribed for the making of that order. In view of that previous decision we would have been bound to hold that this order of detention passed against the petitioner under Act III [3] of 1950 was a valid order and could not be interfered with by this Court; but by the time the matter again came up for hearing, fresh developments took place.
( 42. ) On the morning of 26th January 1950, "The Constitution of India" came into operation, and when the matter was again put up before us, the advocate for the petitioner filed a fresh affidavit on 3lst January 1950, in which he claimed that Act III [3] of 1950 was ultra vires the Bihar Legislature and the provisions of Section 2 (1) (a) read with SECTIONS 4 and 6 of the said Act were inconsistent with the provisions of Part III of the Constitution of India, and therefore, void. It is obvious that Act III [3] of 1960 could not be challenged as ultra vires on account of its being inconsistent with the provisions of the Constitution of India. What the petitioner actually meant was that Act III [8] of 1950 was void on account of its being inconsistent with the provisions of the Constitution Act.
( 43. ) The argument, therefore, which has been advanced before us proceeds upon the footing that the provisions relating to preventive detention under Act III [3] of 1960 are repugnant to the provisions in part III of the Constitution of India, and, as such, the Act is void on account of the repugnancy. This argument has raised an important constitutional question, and we have, therefore, to examine the implications of this question in all its bearings.
( 44. ) In the first place, it has to be seen if the provisions of the Bihar Act III [3] of 1960 relating to preventive detention are really in conflict or inconsistent with the provisions relating to fundamental rights in Part III of the Constitution of India; and, in the second place, if those provisions are inconsistent, whether Bihar Act III [8] 1960 is void to the extent of such inconsistency or it is void as a whole because those provisions constitute an integral part of the Act.
( 45. ) I shall briefly refer to the relevant provisions of the Constitution of India in order to appreciate the point which arises in this case.
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6. ) Article 13 (a) of the Constitution of India says:
"All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall to the extent of avion inconsistency, be void."
Now Article 13 (8) (b) defines what is meant by the term "laws in force" mentioned in Article 13 (1). It says:
"laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas."
The Bihar Act III [3] of 1950 would evidently, therefore, come within the definition of "laws in force" in the territory of Bihar which is a part of territory of India immediately before the. commencement of this Constitution."
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7. ) Now, Article 21 of the Constitution of India says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Then comes Article 22 which is perhaps the most relevant article which falls to be scrutinised in this case. Article 32 (1) says:
"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."
The words "as soon as may be" are significant. It enjoins that no person who is arrested shall be detained in custody unless he is informed, as Boon as may be, of the grounds for such arrest and detention. I may then refer to Sub-clause 3 (b) of Article 22 which says: "Nothing in Clauses (1) and (2) shall apply to any person who is arrested or detained uncler any law providing for preventive detention." In other words, this is an exception to the general provisions contained in Clauses (1) and (2) of Article 22. Then Article 32 (4) proceeds to lay down a procedure for preventive detention which says:
"No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless 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 sufficient cause for such detention."
Then comes a proviso which says:
"Provided that nothing in the sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clauses (b) of Clause (7) or in those cases where such person is detained in accordance with the provisions of any law made by Parament under Sub-clauses (a) and (b) of Clause (7)."
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8. ) The analysis of this provision shows, in the first place, that it does not authorise the preventive detention of any person for a period longer than three months under any law; but it makes an exception for detention for a longer period in two oases only: (1) The first exception is where an Advisory Board has reported before the expiration of the period of three months that there in its opinion sufficient cause for such detention. The proviso to Sub-clause (a) of Clause (4) of that Article constitutes a further safeguard, namely, that even by this exceptional procedure which arises on the report of an Advisory Board, there shall be no detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7)
. (2) Then comes the independent sub Clause (b) of Clause (4) of the Article which makes another exception for detention beyond the maximum period of three months: namely, where such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7). Shortly put, therefore, Sub-clauses (a) and (b) of Clause (4) provide exceptions for detention beyond the period of three months (i) where an Advisory Board reports to that effect, and (ii) where Parliament has made any law for such detention as contemplated by Clause (7) of that Article.
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9. ) We next come to another clause of Article 22, and that is Clause (5). This clause provides that where a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against it. But Clause (6) of the Article adds a rider to this clause, namely, that the authority making such an order, as is referred to in Clause (5), shall not be bound to disclose facts with such authority considers to be against public interest to disclose. I shall have to refer to these clauses of Article 23, namely, Clauses (6) and (6) together when I come to consider the corresponding provisions of the Bihar Act, III [3] of 1960.
( 50. ) Then comes Clause 7 of Article 23 which is another very pertinent clause. I have already said; when dealing with Clause (4) of the Article, that it is referred to in Clause (4) in connection with two important matters. In the first place, even on the report of an Advisory Board, it would not be open to the authorities to detain a person for any period longer than the maximum period prescribed by any law framed by Parliament under Sub-clause (b) of this Article. Sub-clause (b) of this Article, therefore, gives power to Parliament to prescribe by law the maximum period for which any person in any class or classes of oases may be detained under any law providing for preventive detention. In the second place, Sub-clause (b) of Clause (7) gives a sort of a plenary power to Parliament to prescribe by law the circumstances under which and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4).
( 51. ) If, therefore, Parliament proceeds to act under Clause (7) of Article 22 and prescribes by law that a person may be detained for a period longer than three months in a certain class or classes of cases or under certain circumstances, it may do so notwithstanding the provisions of Clause (4) of Article 22. This power which is given to Parliament, therefore, is important in two ways. On the one hand, it may provide the maximum period for preventive detention thereby limiting the period provided by any law for that purpose. On the other hand, it gives a power to Parliament to prescribe a-longer period for detention than that contemplated by Clause (4) of the Article and irrespective of the procedure laid down in that Article for reference to any Advisory Board. Therefore, it comes to this that even if a law may prescribe for preventive detention a period longer than that contemplated by Clause (4) of Article 22, and the procedure for reference to an Advisory Board laid down therein, that law for preventive detention may still continue to be good and valid if Parliament acting under Clause (7), Article 22 prescribes a longer period for detention irrespective of the provisions of Sub-clause (a) of Clause (4) of that Article, subject of course to the limitations prescribed in Clause (7) itself.
( 52. ) Having examined the provieiona of Article 33 which, as I said, are most important provisions of the Constitution of India dealing with the protection against arrest and detention, I shall now proceed to examine the relevant provisions of the impugned Act, namely, the Bihar Act III [3] of 1960.
( 53. ) Under Section 3 (1) (a), Bihar Act, if the provincial Government is satisfied with a view to preventing a person from acting in any manner prejudicial to the public safety and the main, tenance of public order it may make an order directing his detention. Then under Section 6 it is provided that where an order is made under Clause (a) of Sub-section (1) of Section 3 within fifteen days of the date on which the order is served on the person in respect of whom it is made, the authority making the order shall communicate the grounds on which the order has been made against him and such other particulars as in the opinion of the authority may be sufficient to enable him to make a representation against the order. It is to be noted that there is no period provided in the Act during which the order can be served upon the person concerned. There is a period of limitation provided for making a representation against the order by the detenu which ia within fifteen days from the service of the order, but there is no period of limitation provided during which the order has to be served on the detenu. It may be argued on behalf of Government that in the absence of any such period it has to be assumed that the service of the order should be made within a reasonable time. In fact, in this case the order passed under the Act was served almost immediately but that is immaterial when we are examining the provisions of the Act itself. There is obviously a lacuna in the Act in regard to this period. If, therefore, Government were to delay the service of the order (even assuming for certain reasonable administrative difficulties) for over a period of three months, the provisions of the Act enable them to do so; and they can thereby continue to detain the individual without any service of the order for a period longer than three months. This would be in apparent conflict with Clause (4) of Article 22 of the Constitution of India. The date of service of the order is very material inasmuch as the other procedure laid down in Section 5, Bihar Act only arise after the service of that order. But whether these procedures are followed or not, it cannot be said that the order of detention would be thereby rendered illegal merely because no service has been effected. In fact, in dealing with criminal Misc. no. 30 of 1960 decided on 24th January 1960, this Court definitely pointed out that the validity of the detention depends on the existence of the order and not on the service thereof. This then is the first point of inconsistency between the Bihar Act and the Constitution of India.
( 54. ) It is next pointed out that the proviso to Sub-section (1) of Section 5, Bihar Act ia also in conflict with Clauses (6) and (6) of Article 22. The proviso says that "neither the said order nor the detention of the said person thereunder shall he invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to such person under this section." Section 5, however, prescribes that the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is contended, in the first place, that Clause (6) of Article 22 enjoins upon the authority to communicate the grounds of detention, bat it does not authorise him to take shelter under any vagueness or insufficiency in the communication of the grounds. What is required by the Act is that the grounds should be communicated as they are. Of course, it empowers the authority not to disclose facts which he considers improper to disclose in public interest. The proviso in question, on the contrary, gives a very large power to the authorities and says that even if the communication of the grounds are vague and insufficient or defective, the detention shall not be rendered invalid or unlawful on that account. I shall have occasion to examine this ground of repugnancy in a separate place because the question would still re. main whether the repugnancy of the proviso would affect the other provisions of the Act relating to preventive detention, or whether it is merely severable from those provisions of the Act which could subsist in spite of this repugnancy.
( 55. ) I may then refer to some of the other sub-sections of Section 6, which deal with the procedure for reference to the Advisory Council, I should mention here another little point which has also arisen for consideration. Under the Constitution Act, it is only said in Clause (6) of Article 22 that the authority making the order of detention shall afford the person concerned the earliest opportunity for making a representation against the order. The earliest opportunity may be ten days or may be beyond ten daya from the date of service, of the communication of grounds to the person detained. To put it differently, the Constitution Act does not create any disability or place any limitation on the detenu to make a representation within ten days of the communication of the grounds of detention, whereas the Act in Sub-section (1) of Section 5 does create such a disability and a limitation, so that if the detenu fails to make a representation within that period his representation may be thrown out altogether as time-barred. Sub-section (2) of Section 6, Bihar Act, again provides for reference to an Advisory Council the grounds on which an order of detention has been made and the representation, if any, made by the person together with other relevant materials. Then it proceeds to say that the Advisory Council shall if necessary after calling for such further information from Government or from the person concerned submit a report to the Provincial Government again within twelve weeks of the date of the service of the order on the person concerned. I have already pointed out that in all these cases we find that the time starts running from the date of service of the order but there is a lacuna in the Act as to the period during which this ser vice is to be made. This twelve weeks may well be within a period of three months or it may be much beyond the period of three months, but Clause (4) of Article 22, Constitution Act says that there shall be no detention beyond a period of three months unless within that period an Advisory Board has reported that in its opinion there is sufficient cause for such detention. Here again there appears to be a repugnancy between the Act and the Constitution of India. But this is not all.
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6. ) As we proceed to examine Sub-sections (6) and (6) of Section 6, Bihar Act, we find that there are further grounds of repugnancy. Sub-section (5) says: "Alter considering the report of the Advisory Council, the Provincial Government may confirm, modify, or cancel the order made under Clause (a) of Sub-section (1) of Section 2." Now, again it is quite clear from the provisions that the Provincial Government is not bound to respect the report of the Advisory Council. It may or may not accept the report at all. But this is not what is contemplated by Clause 4 (a) of Article S2 of the Constitution. In that clause the authority detaining the person concerned is bound by the report of the Advisory Board. If the Advisory Board thinks that any further detention is undesirable, the authority detaining is bound to release. If, on the other hand, the Advisory Board thinks that a longer detention is justified, the authority detaining has to act upon that opinion of the Advisory Board. Again the difficulty arises as to the time-lag. Under Section 5 of the Act although the Advisory Council is bound to submit its report within twelve weeks from the date of the order, there is no period fixed within which the Provincial Government is to pass its final order. They can wait even upon the submission of the report of the Advisory Council for an indefinite period and thereby pro. long the, detention of a person. In dealing with Cri. Misc. No. 885 of 1949 decided on 24th January 1950, Sunirmal v. Province of Bihar, A. I. R. (37) 1960 Pat. 559,1 referred to this anomaly when examining the corresponding provisions of both the Public Order Ordinance (NO. 2) IV [4] of 1949 as well as the Act of 1950. Thus it is to be noticed that there is no limitation in Act III [3] of 1960 either for service of the order or for the passing of the final order as contemplated by Section 4 of the Act after the submission of the report of the Advisory Council. This again is material because it is only when such a final order has been passed by Government that under Section 4 of the Act this order shall remain in force for a period not extending six months from the date on which it is passed ; though, of course, it is open to Government to revoke the order within that period or even to extend it as provided therein.
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7. ) Then again Sub-section (6) of Section 5 provides:
"All particulars contained in any correspondence between the Provincial Government and the Advisory Council and the report made by the Advisory Council shall be confidential and no Court shall be entitled to require any public servant to produce before it any of the said documents."
This provision evidently would be in clear conflict with Clause 4 (a) of Article 22 under which it would be open to a Court of law to see whether an extension beyond the period of three months is justified in view of the opinion of an Advisory Board justifying such detention. For all these reasons, it has been contended and, in my opinion, rightly contended that Act III [3] of 1950 is repugnant to the Constitution of India, and, aa such, it is void.
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8. ) Another point which has been argued before us can be formulated in this way. Article 246 of the Constitution Act provides for the subject-matter of the laws to be made by Parliament and by the Legislatures of States. It says that the matters enumerated in List I in the Schedule VII of the Constitution are matters over which Parliament has got exclusive power to legislate. Then it also provides that the Legislature of any State specified in part A or part B of Schedule 1 also have power to make laws with respect to any of the matters enumerated in List III in the Schedule VII referred to as the "Concurrent List", whereas the Legislature of a State specified in Part A or Part B of Schedule 1, has exclusive power to make laws for such State or any part thereof with respect to any of the matters in List II of the Schedule referred to as the "State List". Now List I, therefore, is the "Union List", and in the "Union List" our attention is drawn to item 9 which provides for preventive detention for reasons connected with "Defence, Foreign Affairs, or the security of India". Then List III which is the "Concurrent List" shows item 3 enumerating. "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community etc." It is, therefore, argued that on the Concurrent List it is open to a State as also to Parliament to frame laws for preventive detention though under item 9 of List I it would be open exclusively to Parliament to legislate in regard to preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India. It is true that preventive detention for reasons connected with Defence, Foreign Affairs or the security of India are exclusively within the purview of Parliament and constitute its exclusive field of legislation but where preventive detentions are for reasons connected with the security of a State and maintenance of public order, power has been given under the Concurrent List, as already shown above, to the States concerned to legislate in regard to this matter. Therefore, from that point of view, it could not be said that Act III [3] of 1950 which deals with preventive detention for maintenance of public order would be illegal or ultra vires. Our attention has been drawn to Article 254, Constitution Act, where it is provided that
"If any provision of a law made by the Legislature of a State ia repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void."
It is contended on the basis of this section also that the Bihar set in [3] of 1960 being repugnant to the Constitution of India is void to the extent of its repugnancy. This may raise another question as to the pith and substance of the legislation impugned. Section 254, however, has really no application to the case in hand. Section 251, can only apply, if there is a legislation by Parliament in regard to some of those matters enumerated in List I or in List III of Schedule
7. Here the repugnancy complained of is against the Constitution of India itself. Therefore, the relevant provision applicable is not Article 254 of the Constitution but Article 13 of the Constitution to which reference has already been made; and if it can be held, as it has been held above, that the provisions of Act III [3] of 1960 are repugnant to the Constitution of India, then those provisions to the extent of their repugnancy would be void on the plain terms of Article 13 (1) of the Constitution.
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9. ) The question then arises whether the entire provisions relating to preventive detention under Act III [3] of 1950 are void on account of the repugnancy or only some of the provisions of the Act are void, If we can find that the offending provisions are not separable, then it has to be declared that the entire provision relating to preventive detention under the Bihar Act III [3] of 1950 is void on account of its repugnancy. If, on the other hand, they are separable, then there is no reason why only those provisions should not be declared to be void and other provisions of the Act held to be valid.
( 60. ) In deciding criminal MISC. No. 854 of 1949 and criminal Misc. 870 of 1949 my brother Pas and myself held that the provisions of Sub-sections (4) and (5) of Section 4, Public Order Ordinance are not merely directory but mandatory, they being integral parts of the scheme envisaged by the Public Order Ordinance, This Section 4, Public Order (NO. 2) Ordinance IV [4] of 1949 almost exactly corresponds to Section 6 of the Act. Therefore, in connection with another application of a similar nature Cri. Misc. no. 885 of 1949 decided on 24th January 1950 Sunirmal v. Province of Bihar, (A. i. R. (37) 1960 Pat. 269) [LQ/PatHC/1959/78] I again pointed out that
"The provisions of Sub-sections (4) and (5) of Section 5 of Act III [3] of 1950 appear to ua to be mandatory and Integral parts of the scheme of the Act for the very same reasons as the corresponding provisions of the Ordinance of 1949 as already decided by us in Cri. Misc. Nos. 854 and 870 of 1949."
I, therefore, hold that the provisions of the Bihar Act III [3] of 1950 relating to preventive detention are void as being repugnant to or inconsistent with Article 22 (4) and (5) of the Constitution of India.
( 61. ) At an earlier stage of this judgment. I have pointed out that under Article 22 (7), Constitution Act, Parliament has the power to legislate so as to prescribe the maximum period for which a person may be detained under any law providing for preventive detention, or it may provide by legislation for detention for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22. This power which is vested in Parliament by virtue of Clause (7) of Article 22 can be also exercised by the President of the Indian Union until the expiration of one year from the commencement of this Constitution or until provision is made by Parliament under Clause (7) of Article 22. In other words, so long as Parliament itself does not do it, the powers exercisable by Parliament under Article 22 (7) could be exercised by the President of the Indian Union. The Constitution Act under Article 373 also provides that "all the law in force in the territory of India immediately before the oommeneament of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority". In Clause (2) of the same Article the Constitution provides for adaptation of the provisions of any law in force in the territory of India in order to bring them in accord with the provisions of this Constitution, and it says that the President may by order direct such adaptations and modifications of such law whether by way of repeal or amendment as may be necessary or expedient in order to fulfil the purpose of adaptation. It further provides that the law shall as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and the said adaptations or modifications shall not be questioned in any Court of law. This power of the President to direct adaptations of the provisions of any law in force in the territory of India can be exercised subject to the limitation provided in Clause (3) of Article 372, Now, Sub-clause (2) of Article 372 pre-supposes that although the provisions of a law in force in the territory of India may not be in complete accord with the provisions of the Constitution Act, yet, the President by virtue of adaptation orders may bring them in consonance with the provisions of the Constitution Act, and thereby render those laws effective. A question may arise whether by such adaptation the President could cure any repugnancy or inconsistency in a law in force in the territory of India immediately before the commencement of the Constitution. The answer evidently seems to be in the affirmative. The power exercisable under Article 372 can be exercised by the President only after the commencement of the Constitution. Under Article 394 of the Constitution, barring some of the provisions mentioned therein, all the remaining provisions of the Constitution Act came into force on 26th January 1950, in fact immediately after midnight of 25th January. The President of the Union could not enter upon his office or discharge his functions as such until he had taken his oath of office as required by Section 60, Constitution Act. This oath of office was taken by the President after the commencement of the Constitution sometime at about 10-15 A. M. on 26th morning. That being so, the President could act under Article 372 only after the commencement of the Constitution. It does not appear, however, that there was any adaptation order passed by the President in relation to Act III [3] of 1950 so as to modify these provisions or to repeal or amend it in order to make it consistent or in accord with the provisions of the Constitution of India.
( 62. ) Even if the President had purported to do so, the problem still remains whether he could thereby revive the provisions of an Act which became void on account of repugnancy as soon as the Constitution came into operation. I have shown above that the President was not competent to act until he had taken his oath of office, and there was a difference of about ten hours between the commencement of the Constitution and the assumption of the office by the President. The considerations which apply to the interpretation and application of Article 372 cannot apply to the interpretation and application of Article 13 of the Constitution. Article 372 comes under Part XXI of the Constitution of India dealing with temporary and transitional provisions. It definitely saves the operation of all laws which were in force before the commencement of this Constitution, and it provides that those laws shall continue to be in force. Those laws shall not be, therefore, void but any inconsistency in such laws may be cured by adaptations as provided under Clause (2) of Article 372. The provisions of part III of the Constitution Act which deal with fundamental rights stand on an entirely different footing. There Article 13 is a special provision which acts and operates upon all laws which purport to interfere with fundamental rights of people, and it says very definitely that all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of Fart III shall to the extent of such repugnancy be void. Therefore, Article 372 and the powers of adaptation laid down therein would apply to all other legislations which are not affected by Article 13, Constitution Act and which do not interfere with the fundamental rights of individual as laid down in Part III, of the Constitution. Therefore, if there is any enactment the provisions of which offend against the provisions of Article 22, Constitution Act by operation of Article 13, those provisions shall become void. At one stage I was inclined to think that the clause under any law providing for preventive detention, as used in Clause 7 (a) and (b) of Article 22 would cover both class of cases, namely, laws which were in existence before the commencement of the Constitution and law which came into operation after the commencement of the Constitution. But the difficulty in adopting the former interpretation would be in the application of Article 13, Constitution Act. Article 18 would render void the provisions of any law which are inconsistent with Part III of the Constitution as soon as the Constitution commenced to operate. Now, the Parliament or the President could not be expected to act according to the procedure envisaged under Article 22 (7) until after the Constitution commenced. Therefore, by any such acts or legislation of Parliament or that of the President the law which had already become void ex proprio vigors Article 13 of the Constitution could not be restored to life and rendered valid. I have since had the advantage of reading the judgment prepared by my Lord the Chief Justice and I agree that the phrase "any law providing for preventive detention" must be taken to relate to prospective laws, that is, laws which came into operation after the commencement of the Constitution and which would fall under Article 13 (2), Constitution Act. That being so, the provisions relating to preventive detention in Act III [3] of 1950 having already become void as soon as the Constitution commenced, they could not be revived by any act of the President purporting to do so under Article 22 (7) read with Article 373 of the Constitution; nor, in my opinion, could he do so by any adaptations contemplated by Article 373, Constitution Act.
( 63. ) In course of arguments it was intimated to us by the learned Government Advocate ap. pearing for the State of Bihar that the President of the Indian Union had under some notification of the Indian Union purported to prescribe law under Article 32 (7) read with Article 373, Constitution Act. The hearing of the application was accordingly adjourned to another date to enable the learned Government-Advocate to produce the order in question. As I have said, the power under Article 373 is exercieable by the president until the expiration of one year from the commencement of the Constitution, or until provision is made by Parliament under Article 22 (7). A notification was subsequently produced before us on behalf of the State of Bihar purporting to be signed by the President of the Indian Union. The notification is dated 26th January 1950. The notification purports to be in the exercise of powers conferred by Sub-clause (a) and (b) of Clause (7) of Article 22 of the Constitution of India read with Article 373 thereof and of all other powers enabling the President to act in that behalf. The President under the said notification had made the following order, namely :
"1
. (1) This order may be called the Preventive Detention (Extension of Duration) Order 1960
. (2) It shall come into force at once, 2. Where in any class of cases or under any circumstances specified in any law providing for preventive detention in force at the commencement of the Consti tution of India (hereinafter referred to as the Consti tution) any person was, immediately before each commencement, or is at any time thereafter, in deten tion in pursuance of an order made under such law, such person may be detained for a period longer than three months under such law without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22 of the Constitution. . .. 3. The maximum period for which any such person, he is referred to in para, 2 may be detained, shall, in the case of a person in detention immediately before the commencement of the Constitution, be three months from such commencement, and in the case of a person detained in pursuance of an order made after such commencement, be three months from the date of such order."
Mr. Ghosh appearing for the petitioner contends that there is nothing to indicate that the notification produced has been published under the authority of Government, neither the original has been produced nor has it been shown that it is a part of the publication in the Gazette of India. For these reasons be contends that the Court should not take any notice of the aforesaid notification produced by the learned Government Advocate. In reply he refers to another notification bearing the same number and the same date as the one produced by the learned Government Advocate. But this notification is said to be an extract of the Gazette of India dated 26th January 1960. The terms of the notification are also exactly similar to the one produced by the learned Government Advocate with this difference that the notification which must be held to be authentic, being an extract from the Gazette of India, Extraordinary, is signed by "C. Rajagopalachari, Governor-General," Mr. Ghosh contends that the notification in question is not signed by the President but signed by the Governor-General. Now, under Article 392 (i), Constitution Act, the President may for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1936, to the provisions of this Constitution, by order direct that this Constitution shall, daring such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient. Under Clause (3) of Article 392 the powers conferred on the President by this Article, that is, the power to make adaptations in this Constitution itself by way of modification, addition or omission, for the purpose of removing any difficulties in coarse of transition may be exercised by the Governor-General of the Dominion of India, But this power can be exercised by the Governor-General of the Dominion of India only before the commencement of this Constitution. He cannot exercise this power of adaptation after the commencement of this Constitution. Therefore, the notification produced by Mr. Ghosh which purports to be signed by the Governor-General and is dated 26th January 1950, could not be of any value at all for purposes of adaptation of the Constitution Act; nor could it be of any value for the purpose of Article 873 because under Article 373 it is only the President who could set after the commencement of this Constitution. The learned Government Advocate, however, says that the notification produced by Mr. Ghosh is incorrect being due to some error in printing. He has not, however, produced any affidavit in support of this contention. He has not produced the original notification on which he relies for the purpose of showing that it was the President who acted under Article 873 of the Constitution; nor has he produced any authenticated copy thereof; nor has he shown that the order on which he relies has been published in the Gazette of India, ordinary or extraordinary. There is, therefore, no material before us on which we can hold that the President has purported to act under Article 873, Constitution Act, and that the notification produced by Mr. Ghosh is incorrect. After the preparation of tbis judgment the learned Government Advocate produced before us a certified copy of the notification dated 26th January 1960 signed by the President of the Indian Union. But, as I have already said, this is immaterial and does not affect the legal position which I have discussed above, and by this notification the President could not revive the provisions of a law which due to their inconsistency in Constitution of India as given in part in of the Constitution had already become void. I am, therefore, constrained to hold that in any view of the matter the detention of the petitioner is illegal.
( 64. ) In view of what I have held, it is unnecessary for me to dilate upon the question whether the proviso to Sub-section (1) of Section 5, Bihar Act III [3] of 1950, even if void on account of repugnancy is severable from the other provisions of the Act. Mr. Ghosh appearing for the petitioner submits that it is not. He would have ua hold that it is an integral part of the scheme of the Act relating to preventive detention. I am afraid I cannot accept this contention of the petitioner. It is quite obvious that this proviso is severable and if I had not otherwise come to the conclusion that the entire provisions of the Act relating to preventive detention are repugnant to the Constitution of India, I would have held that the proviso could be eliminated from consideration in examining the legality or otherwise of the detention of the petitioner. In that event, it was sufficient for us to see whether or not the communication of the grounds to the petitioner was such as to enable him to make a representation against the order of detention. It is not open to us to examine the correctness or otherwise of the grounds of detention. Even on the authority of the decision in the case of Nek Mohammad v. Province of Bihar, A. I. R. (36) 1949 Fat. 1 : (50 or. L. J. 44 F. B.), all that this Court is entitled to say is that, if no particulars are given or particulars are given in such a way as to make it impossible for the detenu to make a representation against the order, then there is a failure to comply with the mandatory provisions of the section, and the detenu is deprived, to use the words of the section, "the earliest opportunity of making a representation." This does not mean that it is open to this Court to examine the correctness or otherwise of the grounds of detention which is really the function of Government or the Advisory Council or Advisory Board constituted for the purpose.
( 65. ) Mr. Ghcsh for the petitioner has relied upon a number of decisions of this Court in this connection. It must be said that some of the decisions have gone to the extent of criticising the propriety of the grounds of detention communicated to the petitioner ; but these decisions are at beat merely illustrative. So far as the grounds furnished to the petitioner are concerned, we have examined them carefully and I do not think that there is any vagueness or indefinite-ness about the grounds alleged. That being so, I would have been reluctant to hold that the detention of the petitioner is illegal on this account. But in view of the reasons advanced above, I must hold that the detention of the petitioner is illegal and he should be set at liberty forthwith.
Advocates List
For the Appearing Parties Basanta Chandra Ghose, D.K. Sinha, Advocates.
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE CHIEF JUSTICE MR. MEREDITH
HON'BLE MR. JUSTICE SARJOO PRASAD
Eq Citation
AIR 1950 PAT 265
LQ/PatHC/1950/35
HeadNote
1. Yes, the detention was held to be illegal and quashed. In this case, petitioner Brahmeshwar Prasad was detained on 3rd March 1949 under Section 161, CrPC, and lodged in Bhagalpur Camp Jail. On 13th March, there was a detention order under Act V [5] of 1947. That Act having been declared ultra vires and having been replaced by an Ordinance, there was a fresh detention order under the Ordinance on 6th June. That Ordinance in turn was declared ultra vires by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made and served on 6th July. On 6th December, the present application was preferred. A rule was issued, and 16th January was fixed for hearing. It eventually came up on 18th January, this Court having in the meanwhile held that the provisions in the Ordinance for reference to an Advisory Council and report by that Council, were mandatory, and non-compliance would make the detention illegal. The Government Advocate, however, stated that a fresh detention order had been passed under Act III [3] of 1950, which had replaced the Ordinance on 4th January 1960, and he asked for a fresh adjournment to prove that order. He was given an adjournment for seven days, and it was established that in facts a fresh detention order under Act III [3] of 1960 was passed on 16th January, and was served on 16th. Subsequently, petitioner challenged the validity of Act III [3] of 1950 itself, on the ground that some of its provisions conflicted with the provisions of the Constitution which had come into force on 26th January 1950. Thus, a constitutional question of great significance arose. 2. The question that arose for consideration in the instant case is as to whether the respondent assessee's product was classifiable under Chapter 49 Sub-Heading 4901.90 attracting nil excise duty or it is to be classified under Chapter 83 Heading 8310 of the Central Excise Tariff Act?