Ray, C.J.

1. The constitutional validity of the Maintenance of Internal Security Act, 1971, Being Act No. 26 of 1971 is challenged in these petitions.

2. First, it is said that the law of preventive detention is unreasonable, and therefore, it violates Articles 19. Second, it is said that the violates articles 21 because the guarantee of a right to be heard is infringed. Third it is said that the does not lay down the just procedure for giving effect to Article 22 (5). Fourth, it is said that the violates Article 14 because it permits discrimination.

3. The Act confers powers of the Central Government on the State Government to make orders directing detention of persons. Section 3 of theprovides that when the Central Government or the State Government is satisfied with respect to any person that with a view to preventing him from acting in manner prejudicial to (i) the defence of India, the relations of India with powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. District Magistrates, Additional District Magistrates or Commissioners of Police can pass orders of detention.

4. The Act provides in sub-sections (3) and (4) of S.3 that when any order is made for detention, the officer shall forthwith report the fact to the State Government on the grounds on which the order has been made and such other particulars in his opinion have a bearing on the matter. Further, no order shall remain in force for more then twelve days after the making there of unless in the meantime it has been approved by the State Government. The proviso to sub-section (3) states that where under Sec.8, the grounds of detention are communicated by the authority making the order after five days, but not later than fifteen days from the date of detention, this sub-section shall apply subject to the modification that for the words "twelve days," the words, "twenty-two days" shall be substituted, when any order is made or approved by the State Government the State Government shall, within seven days report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.

5. Section 7 of thestates that if the Central Government or the State Government or an officer specified in sub-section (2) of S.3 of the has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself, a report in writing is to be made to the Presidency Magistrate or a Magistrate of the first class. Thereafter the provisions of Section 87, 88 and 89 of the Code of Criminal Procedure, 1898 (now the corresponding) sections in the 1973 Act) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate. An order can also be passed directing such persons to appear and if he fails to comply with the directions he shall unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer of the reason which rendered compliance therewith impossible of his whereabouts, be punishable with imprisonment for a term which may extend to year or with fine or with both.

6. Section 8 provides that when a person is detained the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances not later than fifteen days, from the date of detention, communicate to him the ground on which the order has been made and shall afford him the opportunity of making a representation against the order to the appropriate Government.

7. The Government constitutes one or more Advisory Boards. The Board shall consist of three persons who are, or have been, or are qualified to be appointed as Judges of a High Court. The appropriate Government shall appoint one of the members of the advisory Board who is or has been, a Judge of the High Court to be its Chairman. A detention order is to be placed before the advisory Board within 30 days from the date of detention under the order. The grounds of detention, the representation made by the person concerned and the report of the officer making the order shall be placed before the Advisory Board. These are the provisions of Section 10 of the.

8. The Advisory Board under Section 11 of theshall, after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called or the purpose through the appropriate Government or from person concerned and if, in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person, submit its report to the appropriate Government within 10 weeks from the date of detention. The report of the Advisory Board shall specify in separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. If there is a difference of opinion of the Advisory Board, the opinion of the majority of such members shall be deemed to be opinion of the Board. A person against whom detention order has been made is not entitled to appear by a legal practitioner before the Advisory Board.

9. Under Section 12 of thewhere the Advisory Board has reported that there is sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned. If the Advisory Board reports that there is no sufficient cause of detention the appropriate Government shall revoke the detention order.

10. Section 14 provided that without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 a detention order may any time, be revoked by the appropriate Government.

11. Section 15 provided that the appropriate Government may, at any time, direct the release of any person detained without condition or upon such conditions specified in the direction. The Government may also cancel his release.

12. In the background of these provisions of the the petitioners contend as follows : The act does not provide for an objective determination of the facts which are the foundation of a decision for detention. The opportunity to make a representation cannot be reasonable if the order does not disclose the materials on the basis of which the detaining authority arrives at a conclusion that grounds for detention exist. The representation cannot be reasonable if the detenu has no opportunity to test the truth of the materials relied on for detention. The Act does not define or lay down the standers for objective assessment of the grounds for detention. The Act does not oblige the Government to consider the representation against detention and decide every detention on facts and on law against grounds communicated to the detenu.

13. In short, it is said that the order of detention should set out all the materials on the basis of which the appropriate Government comes to a conclusion that it is necessary to detain a person. Mere recital in the order that with a view to preventing a person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or the security of the State or the maintenance of public order, or the maintenance of supplies and services essential to the community does not enable the person detained to attack the grounds for detention and to prove by material in rebuttal of his innocence by consideration of the representation.

14. The petitioners contended that the permits detention for two years or even until the expiry of the period of proclamation of emergency and therefore it is an unreasonable restriction in violation of Article 19 without six monthly review with a judicial approach. With regard to the report of the Advisory Board, it is said that the reason for rejecting representation must be available to the person detained. This is said to be necessary to enable the person detained to come up before the Court for judicial review and in aid of his right to liberty.

15. The petitioners therefore contend that the law of preventive detention is unreasonable, in violation of Article 19 in as much as the order of detention can be passed on acts sought to be prevented which acts are not defined, It is said that the power is so unguided that acts forbidden and acts not forbidden for detention.

16. The petitioners contend that Article 21 is violated because a detenu is not given the right to be heard on all facts and circumstances. The petitioners submit that whether deprivation of liberty is punitive or preventive, the right to be heard is guaranteed by Article 21.

17. The petitioners contend that Article 22 is violated by the because it does not provide for impartial and judicial consideration of the representation by the Government. The Act merely reproduces the language of Article 22 which creates a fetter on the power of the Legislature. This Act does not provide any machinery and just procedure for giving effect to Article 22 (5). The acts sought to be prevented and which are mentioned as grounds for detention are not defined. Therefore, power is unguided and unbridled. The Act is so framed by reproducing Article 22 (5) that nothing is shown to spell out the requirements of procedure available in a reasonable manner to ensure fair play and justice against grounds communicated and not withheld under Article 22 (6).

18. Finally, the petitioners contended that section 3 of theviolated Article 14 because it permits the same offence to be a ground for detention in different and discriminatory ways. The petitioners submit that A may be prosecuted but only detained preventively or C may be prosecuted and also detained preventively.

19. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his quite and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of theto prevent.

20. Constitution has conferred rights under Article 19 and also adopted preventive to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the Nation. It is not possible by think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is prosecuted of an offence of cheating convicted after trial, it is not open to him to say that the imprisonment should be tested with reference to Art, 19. for its reasonableness. A law which attracts Article 19 therefore must be such as is capable of being tested to be reasonable under clauses (2) to (5) of Article 19.

21. This Court in A. K. Gopalan v. State of Madras, 1950 SCR 88 [LQ/SC/1950/19] = (AIR 1950 SC 27 [LQ/SC/1950/19] = 51 Cri LJ 1383) held that Article 22 is a complete Code and Article 19 is not invoked in those cases. It is now said that the view in Gopalans case (supra) no longer holds the field after the decision in the Bank Nationalisation case (1970) 3 SCR 530 [LQ/SC/1970/40] = (AIR 1970 SC 564 [LQ/SC/1970/40] ). In the Nationalisation case (supra) this Court held that Article 31 (2) is not a complete protection for acquisition of property by the two tests of authority of law and compensation. This court said that the direct impact of such an act of acquisition might invade under Article 19, and, therefore, the acquisition could be tested as to whether it was a reasonable restriction on the rights guaranteed under Article 19. Article 19 (1)(f) deals with the right to acquire hold and dispose of property. It is apparent that after a persons property has been acquired by the State he cannot acquire, hold or dispose of the same property. In the Bank Nationalisation case (supra) it is said that the acquisition which left the Banks free to do business other than banking was rendered unreasonable by reason of the Banks being deprived of the wherewithal to carry on the business. The right guranteed under Article 19(1) (g) to carry on any occupation, trade or business were therefore held to be directly invaded by the nationalisation of Banks. It is in this context, that the Bank Nationalisation case (supra) held that in spite of Article 31 (2) the acquisition of property directly impinged on the right of the Banks to carry on business other than Banking guaranteed under Art, 19 (1) (g) and Art. 31 (2) was not a protection against infringement of that guaranteed right.

22. We may, proceed on the assumption that the which is for preventive detention may be tested with regard to its reasonableness with reference to Article 19. Section 3 of theis to be interpreted in the light of various existing Statutes which deal with the various acts mentioned in Section 3. Acts sought to be prevented are found in various legislations like the Essential Commodities Act, the Essential Services Act. It is not necessary that the person to be detained should have actually committed a crime or a forbidden act. In some cases the person who has not already committed a crime is likely to commit an act to prevent which Section 3 provides for detention of such a person. Some times, it may be possible that an act which is not forbidden by law may fall within the ambit of Section 3. Such cases may be dealing with relations of India with foreign powers or maintenance of public order.

23. The Preventive Detention Act of 1950 was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all the materials on which the order of detention is based or approved. The only exception is as provided in Cls. (6) and (8) of Article 22 where it is not necessary to disclose facts which may be considered to be against the public interest to disclose.

24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire materials. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing, Section 8 of thewhich casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22 (5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board on the other hand, considers whether in the light of the representation there is sufficient cause for detention.

25. The representation is to be considered by the Advisory Board by following the substance of natural justice as far as it is consistent with nature of the impugned Act, the nature of the relative jurisdiction of the Government and of the Advisory Board. Procedural reasonableness for natural justice flows from Article 19. Article 22 (5) speaks of liberty and making of representation. The combined result of clauses (4), (5) and (6) of Article 22 is that a procedure which permits representation will give all the facts before the Board. Article 22 (5) shows that law as to detention is necessary. The requirements of that law are to be found in Article 22. Article 22 gives the mandate as to what will happen in such circumstances.

26. The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board.

27. Section 14 of theclothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as changed or new factors call for the exercise of that power. This shows that the authorities can consider new factors or changed circumstance. This Court has already held in Fagu Shaw v. State of West Bengal, AIR 1974 SC 613 [LQ/SC/1973/415] = (1974 Cri LJ 486) that when Parliament prescribed two years or until the expiry of the Defence of India Act, whichever is later, it satisfied the requirements of Article 22 (7) (b), of fixing the maximum period. The further requirement of a six monthly review as contended for by the petitioners suggests a new provision. That does not go to reasonableness but to policy of legislature and due process of law.

28. Section 8 of thefollows the provisions of Article 22 (5) of the Constitution. Article 22 (5) enjoins upon the detention authority obligation to afford to detenu earliest opportunity of making a representation against the order. An opportunity of making a representation cannot be equated with an opportunity of oral hearing before a court and the procedure of judicial trial. As long as there is an opportunity to make a representation against the order of detention and as long as a representation is to be considered by the Advisory Board, there is no unreasonableness in regard to the procedure. The duty to consider the representation does not mean a personal hearing or the disclosure of reasons. Procedural reasonableness which is invoked by the petitioners cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.

29. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration by the State Government, the obligation of the State Government is such as Article 22 (5) implies. Section 8 of theis in complete conformity with Article 22 (5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers representation. If a representation is made after the matter has been referred to the Advisory Board the detaining authority will consider it before it will send representation to the Advisory Board.

30. Elaborate rules of natural justice are excluded either expressly or by necessary implication where procedural provisions are made in the statute or where disclosure of relevant information to an interested party would be contrary to the public interest. If a statutory provision excludes justice then the Court does not completely ignore the mandate of the legislature. The Court notices the distinction between the duty to act fairly and a duty to act judicially in accordance with natural justice. The detaining authority is under a duty to give fair consideration to the representation made by the detenu but it is not under a duty to disclose to the detenu any evidence or information. The duty to act fairly is discharged even if there is not an oral hearing. Fairness denotes abstention from abuse of discretion.

31. Article 22 which provides for preventive detention lays down substantive limitations as well as procedural safeguards. The principles of natural justice in so far as they are compatible with detention laws find place in Article 22 itself and also in the. Even if Article 19 be examined in regard to preventive detention. it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention.

The procedure in the provides for fair consideration to the representation. Whether in a particular case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authority is abusing the powers of detention can be brought before the Court of Law.

32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the materials for inference about the future of probable conduct on the part of the detenu.

34. The recent decision of this Court on this subject are many. The decisions in Borjahan Gorey v. State of West Bengal, reported in AIR 1972 SC 2256 [LQ/SC/1972/345] , Ashim Kumar Ray v. State of West Bengal,reported in AIR 1972 SC 2561 [LQ/SC/1972/374] , Abdul Aziz v. The Distt. Magistrate, Burdwan, reported in AIR 1973 SC 770 [LQ/SC/1972/495] = (1973 Cri LJ 590) and Debu Mahto v. State of West Bengal. Reported in AIR 1974 SC 816 [LQ/SC/1974/46] = (1974 Cri LJ 699) correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh, reported in AIR 1974 SC 1161 [LQ/SC/1974/128] = (1974 Cri LJ 817) which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

35. For the foregoing reasons, we are of opinion that the does not suffer from any constitutional infirmity.

36. In the case of Madanlal Agarwala, it is submitted that the detention order was for a collateral purpose because he was released on 26 March, 1973, and the detention order was of the same day. It was also said that one incident was said to be the ground in the order of detention and one incident should not suffice for an order of detention.

37. The ground given in Madan Lal Agarwals case is that he in collusion with his father had hoarded 8 quintals 84 kg of rice, 2 quintals 88 kg. of flour and 1 of Suji and further that he had no licence as required by Sec.4 of the West Bengal Essential Food stuffs Anti-Hoarding Order, 1966. The detaining authority said in the grounds. "It is apparent in the aforesaid facts that you in collusion with your father are likely to withhold or impede supply of foodstuffs or rationed articles essential to the community". The future behaviour of Madan Lal Agarwala based on his past conduct in the light of surrounding circumstances in the real ground of detention. It is needles to stress the obvious that Madan Lal Agarwalas acts are gravely prejudicial to the maintenance of supplies essential to the community.

38. It was said in the case of Haradhan Shah that he was released on 25 July, 1973 and he was arrested on 7 August, 1973, pursuant to a detention order dated 31 July, 1973. It is, therefore, said that the detention order was passed for collateral purpose. The grounds in the detention order are that on 19 June, 1973, Haradhan Saha with his associates was smuggling 115 bags of rice weighing 93 quintals 80 kgs. to Calcutta covered by coal by engaging lorry without any valid permit or authority. Hardhan Saha violated the provisions of West Bengal Rice and Paddy (Restriction on Movement by Night) Order, 1969, and West Bengal Rice and Paddy (Licensing and Control) Order, 1967, and tried to frustrate the food and procurement policy of the Government. These grounds concluded by stating that Haradhan Saha acted in a manner prejudicial to the maintenance of supplies and services essential to the community. This gain illustrates as to how these detention orders came to be passed to prevent the likelihood of such acts prejudicial to the maintenance of supplies essential to the community.

39. The petitions are therefore dismissed.

40. Petitions dismissed.