1. Gwyer, C.J.:— In this case the appellant appeals against the refusal of a Division Bench of the High Court of Bombay to grant an order under S. 491 of the Criminal Procedure Code in the nature of a writ of habeas corpus in order to secure the release of the appellant from detention under an order purporting to be made under R. 26 of the Defence of India Rules. The appellant was arrested on August 24th last under R. 129, and an order for his detention under R. 26 was made by the Provincial Government on August 27th. The ground on which the appellant asked for an order under S. 491 was that the Defence of India Act, 1939, and as a necessary corollary the rules made thereunder are ultra vires, since the Act purports to relate to the Defence of India, and no power is conferred on the Central Legislature or upon any other Legislature in India to legislate on that subject. This is a startling contention and if it is sound, would have even more startling consequences. It is therefore necessary to examine closely the facts of the case and the relevant statutory provisions which have been brought to our notice.

2. The appellant states that he was arrested by a police officer on August 24, 1942. and detained in custody; that on September 4th, he was removed to the Thana Jail; and that he learned later that an order had been made by the Bombay Government dated August 27th, which is in the following terms:—

“Whereas the Government of Bombay has received a report from the Commissioner of Police, Bombay, that the person known as Keshav Talpade has been arrested and committed to jail custody under sub rules (1) and (2) respectively, of rule 129 of the Defence of India Rules;

3. And Whereas the Government of Bombay is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it is necessary to make the following order;

4. Now therefore in exercise of the powers conferred by sub-rule (4) of rule 129 read with rule 26 of the said rules, the Government of Bombay is pleased to direct—

(a) that the said Keshav Talpade be detained until further orders;

(b) that he shall be detained in the Thana District Prison until any other place for his detention is determined by a competent authority under sub-rule (5) of the said rule 26; and

(c) that he shall for, the purposes of the Security Prisioners Detention Conditions Order, 1941, be classified as a Clause II security prisoner.”

5. The appellant further states that he is now detained in the Yeravada Central Jail, Poona. He denies that he has acted in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of war; on the contrary he says that he believes in giving unqualified aid to the efficient prosecution of war, It is not disputed that he is in fact detained under the order to which we have referred.

6. The two Rr. 26 and 129 are in the following terms:—

“26(1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order. His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war it is necessary so to do, may make an order;

(a) directing such person to remove himself from British India in such manner, by such time and by such route as may be specified in the order and prohibiting his return to British India.

(b) directing that he be detained;

(c) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein he shall not be in any such area or place in British India as may be specified in the order;

(d) requiring him to reside or remain in such place or within such area in British India as may be specified in the order and if he is not already there to proceed to that place or area within such time as may be specified in the order;

(e) requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner at such times and to such authority or person as may be specified in the order;

(f) imposing upon him such restrictions as may be specified in the order in respect of his employment or business, in respect of his association or communication with other persons, and in respect of his activities in relation to the dissemination of news or propagation of opinions;

(g) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order;

(h) otherwise regulating his conduct in any such particular as may be specified in the order;

Provided that no order shall be made under clause (a) of this sub-rule in respect of any British Indian subject of His Majesty.

Provided further that no order shall be made by the Provincial Government under clause (c) of this rule directing that any person ordinarily resident in the Province shall not be in the Province.

(3) An order made under sub-rule (1) may require the person in respect of whom it is made to enter into a bond, with or without sureties for the due performance of, or as an alternative to the enforcement of, such restrictions or conditions made in the order as may be specified in the order.

(4) If any person is in any area or place in contravention of an order made under the provisions of this rule, or fails to leave any area or place in accordance with the requirements of such an order, then, without prejudice to the provisions of sub-rule (6) he may be removed from such area or place by any police officer or by any person acting on behalf of Government.

(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 detained in such place, and under such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Central Government or the Provincial Government, as the case may be, may from time to time determine.

(5A) Where the power to determine the place of detention is exercisable by the Provincial Government, the power of the Provincial Government shall include power to determine a place of detention outside the Province;

Provided that—

(a) no such place shall be determined save with the previous consent of the Provincial Government of the Province in which the place is situate, or, where the place is situate in a Chief Commissioner's Province, of the Central Government;

(b) the power to determine the conditions of detention shall be exercised by the Provincial Government of the Province in which the place is situate, or where the place is situate in a Chief Commissioner's Province, by the Central Government.

(5B) If the Central Government or the Provincial Government, as the case may be, has reason to believe that a person in respect of whom that Government has made an order under clause (b) of sub-rule (1) directing that he be detained has absconded or is concealing himself so that such order cannot be executed the Government may—

(a) make a report in writing of the fact to a presidency Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 87, 88 and 89 of the Code of Criminal Procedure, 1898, 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;

(b) by notified order direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction 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 and of his where abouts, be punishable with imprisonment for a term which may extend to seven years or with fine or with both.

(5C) The Central Government or the Provincial Government may by general or special order made with the consent of the Crown Representative, provide for the removal of any person detained by it under sub-rule (1) to and for the detention of such person in any area administered by the Crown Representative.

(6) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five years or with fine or with both, and if such person has entered into a bond in pursuance of the provisions of sub-rule (3), his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid.”

“129. (1) Any police officer or any other officer of Government empowered in this behalf by general or special order of the Central Government, or of the Provincial Government may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act.—

(a) with intent to assist any State at war with His Majesty or in a manner prejudicial to the public safely or to the efficient prosecution of war;

(b) in any area which the Provincial Government has, by notification, declared that this clause shall become operative in a manner calculated to promote, or to assist the promotion of, rebellion against the authority of Government;

(c) in any prohibited place, protected place or protected area, or any other place or area as respects which an order has been made under rule 9 in a manner pre judicial—

(i) to the safety of any such place or area or of any industry, machinery or building in any such place or area;

(ii) to the output or effective control of any such industry or machinery.

(2) Any officer who makes an arrest in pursuance of Sub rule (1) shall forthwith report the fact of such arrest to the Provincial Government, and pending the receipt of the orders of the Provincial Government, may, subject to the previsions of Sub-rule (3), by order in writing, commit any person so arrest ed to such custody as the Provincial Government may by general or special order specify:

Provided—

(i) that no person shall be detained in custody under this sub rule for a period exceeding fifteen days without the order of the Provincial Government; and

(ii) that no person shall be detained in custody under this sub-rule for a period exceeding two months.

(3) If any person arrested under clause (c) of sub-rule (1) is prepared to furnish security, the officer who has arrested him may, instead of committing him to custody, release him on him on his executing a bond without sureties that he will not, pending the receipt of the orders of the Provincial Government, enter, reside or remain in the areas in respect of which he became liable to arrest.

(4) On receipt of any report made under the provisions of sub-rule (2), the Provincial Government may, in addition to making such order, subject to the second proviso to Sub-rule (2), as may appear to be necessary for the temporary custody of any person arrested under this rule, make, in exercise of any power conferred upon it by any law for the time being in force, such final order as to his detention, release residence or any other matter concerning him as may appear to the said Government in the circumstances of the case to be reasonable or necessary.

(5) Subject to the condition that nothing in this Sub-rule shall be deemed to extend the limits of detention prescribed in the first and second provisos to Sub-rule (2), the Provincial Government may direct that any person arrested under clause (a) or clause (b) of Sub-rule (1) shall be removed to any other province of which the Provincial Government (hereinafter described as the second Government) has given its consent in this behalf, and thereupon such person shall be removed and the second Government shall take in respect of such person such action as may be lawful in like manner a if such person had been arrested within its province.

(6) When security has been taken in pursuance of the provisions of Sub-rule (3) the bond shall be deemed to be a bond taken under the Code of Criminal Procedure, 1898, by the Chief Presidency Magistrate or District Magistrate having jurisdiction in the area in respect of which the said security has been taken and the provisions of section 514 of the said Code shall apply accordingly”.

7. Both rules were made by the Central Government under powers conferred by the Defence of India Act, 1939. S. 2(1) of that Act provides that.

“The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India; the public safety, the maintenance of public order or the effcient prosecution of war, or for maintaining supplies and services essential to the life of the community”.

8. Sub-section (2) is as follows:

“Without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters”;

and then follow thirty-five paragraphs each of which sets out a matter or matters for which rules under the Act may be made. Apart from the general words in Sub-section (1), paragraph (x) of Sub-section (2) appears to be the only provision in the Act dealing with the apprehension and detention of suspects Paragraph (x) is in the following terms:—

“The apprehension and detention in custody of any person reasonably suspected of being of hostitle origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area or to do, or abstain from doing, anything”

9. Counsel for the appellant contended that the Central Legislature had no power to enact the Defence of India Act, 1939. at all, because the “defence of India” is not to be found among any of the entries in Lists I. II and III in the Seventh Schedule of the Constitution Act. This is no doubt true, and it is plain from various provisions of the Act that the executive authority of the Governor-General with respect to defence extends beyond matters with respect to which the Central Legislature has power to make laws: see for example ss. 7, 8, 11 and 12 (or during the transitional period, before Part II comes into force, ss. 312 and 313). We need not enlarge on the general scheme of the Act, which is now well known; it is sufficient to say that List I sets out a number of matters in respect of which the Central Legislature has an exclusive right of legislation. List II a list of matters in respect of which the Provincial Legistures have a similar exclusive right, and List III a list of matters in respect of which the Central and Provincial Legislatures have a concurrent power of legislation. There are one or two entries which are indirectly connected with defence, such as entries No. 1 and 2 in List I and entry No. 34 in List 111; but many other entries in one or other of the three Lists would clearly enable legislation of different kinds to be enacted which would in fact be effective for the purposes of defence. Then S. 102 of the Act provides that, if the Governor-General has declared by Proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, the Central Legislature is to have power to make laws for a Province or any part thereof with respect to any of the matters in the Provincial Legislative List. Such a Proclamation has been issued, and accordingly the Central Legislature has at the present time power to make laws with respect to any matter in any of the three Lists.

10. It is plain, we think, that entries in the Legislative Lists can be found which would justify legislation on most matters covered by the general words in S. 2(1) of the Defence of India Act as well as by the more precise provisions set out in sub-S. (2) with its thirty-five paragraphs. The draftsman of S. 2(1) appears to have adopted the language of the Emergency Powers (Defence) Act, 1939, which has been passed by Parliament not altogether happily seeing that with the possible exception of “the maintenance of, public order”, none of the purposes which he has set out are to be found under the same description among the matters comprised in the Legislative Lists. Counsel for the appellant however contended that legislation purporting to be with respect to the defence of India” as such was ultra vires the Central Legislature altogether. So far as we understood him, he was prepared to admit that many of the provisions in the Act of 1939 could be justified by one or more entries in the Legislative Lists, if they stood by themselves; but that if they purported to be provisions “with respect to the defence of India”, then they were bad. He would not admit that some of the provisions in the Act might be good, even if others were bad for the reason which we have just given; for he argued that the Act represented a single legislative scheme, every part of which was so closely interwoven with every other part that it was not possible to sever the valid from the invalid. This argument appears to us to be without any substance. If it can be shown that there are provisions in the Act of 1939 which are not covered by any of the entries in the Legislative Lists, then no doubt they will be open to challenge. It is however unnecessary in the present case that we should analyse for that purpose the Act and the Rules made under it since entry No. 1 of List I gives the Central Legislature in any event power to legislate with respect to preventive detention in British India for reasons of State connected with defence and certain other specified matters, and we see no reason why it is not permissible to treat any provisions with respect to this as severable from the rest of the Act and Rules even if all the latter are bad. We agree on this point with the High Court of Bombay. The High Court of Allahabad had substantially the same argument addressed to them and arrived at a similar conclusion in the case of Emperor v. Meer Singh see especially the judgment of Braund J.

11. The Canadian and Australian cases cited on behalf of the appellant do not assist him. In those Dominions the subject of “defence” is a matter within the exclusive competence of the Dominion Parliament and the Commonwealth Parliament respectively. In the Canadian case, Fort Frances Pulp & Power Co. Ltd. v. Manitoba Free Press Co., Ltd. the question was whether Dominion legislation could be justified as a defence measure even though it trespassed on the provincial sphere, and the Privy Council returned an affirmative answer. A similar conclusion was reached in Australia. Farey v. Burvet; and therefore it is true to say that the Courts have decided that the Central Legislature has by implication both in Canada and Australia all the powers of legislating with respect to “defence” which S. 102 of the Constitution Act has expressly conferred on the Central Legislature in India.

12. We therefore reject the main argument addressed to us on behalf of the appellant, and if there were nothing more in the appeal, we should dismiss it without further discussion. There is however another aspect of the case, which was not argued until the Court itself drew the attention of Counsel to it; for it seemed to us that it was open to question whether R. 26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be held void and inoperative, either in whole or in part; and orders made under it will be similarly open to challenge.

13. The power conferred on the Central Government by S. 2(2)(x) of the Act [we leave aside for the moment the more general powers in Sub-section (1)] is to make rules providing for the apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India. Under R. 26 it is enough that the Central or Provincial Government

“is satisfied with respect to any particular person that his detention is necessary with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war.”

14. The references to His Majesty's relations with foreign powers or Indian States and the maintenance of peaceful conditions in tribal areas were added to the original rule by Notification dated August 3rd, 1940. It will be seen that there is nothing about hostile origins. “Reasonably susrected” implies the existence of suspicions for which there is reasonable justification; but by what test is the reasonableness of the justification to be determined Nothing is said in R. 6 about suspicions reasonable or otherwise, that the person concerned has acted, is acting or is about to act in a prejudicial manner: those who framed it thought it sufficient to provide that the Government should be satisfied that the detention is necessary with a view to prevent the person concerned from acting in a prejudicial manner. We are compelled therefore to ask ourselves two questions;

(1) whether “reasonably suspected” in the rule-making power means suspected on grounds which appear reasonable to the authority or whether it means suspected on grounds which are in fact reasonable; and

(2) Whether a statutory power to make a rule for the detention of persons reasonably suspected of having acted, of acting, or of being about to act in a certain specified way justifies the making of a rule which merely empowers Government to detain a person if it is satisfied that it is necessary to do so with a view to preventing him from acting in that way or in certain other ways also.

15. We approach the consideration of these questions with the anxiety which a Court of Justice must always feel where the liberty of the subject is concerned; but we have at the same time to remember that the country is at war and that in war as it is known today every Government in the world has found it necessary to arm itself with powers unthought of and often unknown in time of peace. And though it is well to remember that as was said in one of the judgments delivered in a case before this Court some years ago, Courts of Law ought to abstain from harsh and ungenerous criticism of acts done in good faith by those who bear the burden and responsibility of government, especially in times of danger and crisis, we are not on that account relieved from the duty of seeing that the executive government does not seek to exercise powers in excess of those which the Legislature has thought fit to confer upon it, however drastic and far reaching those powers may be and however great the emergency which they are designed to meet. Nevertheless we must constantly bear in mind the purpose of the powers given, since, to use the words of Lord, Macmillan in Liversidge v. Sir John Anderson.

“it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time.”

16. In the case just cited the question before the House of Lords was the true construction of a regulation made under the Emergency Powers (Defence) Act, 1939. Section 1(1) of that Act is substantially in the same terms as S. 2(1) of the Defence of India Act, 1939. S. 1(2) then authorizes the making of defence regulations for a number of purposes [as S. 2(2) of the Defence of India Act, does], and among them “for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.” Under this power a regulation was made in the following terms.

“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or of association or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparations or instigation of such acts and that by reason thereof it is necessary to exercise a control over him, he may make an order against that person directing that he be detained.”

17. The rest of the regulation [Reg. 18B of the Defence (General) Regulations, 1939] contains provisions covering the same ground as the latter part of R. 26 of the Defence of India Rules, and there can be no doubt that the draftsman of both the Indian Act and Rules had the English Act and Rules before him, But there is one very striking difference. Lord Macmillan, after quoting the terms of the regulation-making power on the subject of the detention which has been cited above, observes:—

“There could be no clearer evidence of the intention of Parliament to authorize the abrogation in the public interest and at the absolute discretion of the Secretary of State of the ordinary law affecting the liberty of the subject. A perusal of the whole Act and of the subsequent Acts of 1940, is sufficient to satisfy any reader of the extraordinary interferences with the citizen's most cherished rights of person and property which, in the view of Parliament, may be necessary and proper in the present grave national danger. In considering the interpretation of the regulation authorizing the Secretary of State to make detention orders, 1 therefore bear in mind that Parliament expressly contemplated that he should by regulation be empowered to do so at his absolute discretion. In the next place, it is relevant to consider to whom the emergency power of detention is confined. The statute has authorized it to be conferred on a Secretary of State, one of the high officers of State who by reason of his position, is entitled to public confidence in his capacity and integrity, who is answerable to Parliament for his conduct in office and who has access to exclusive sources of information. In a question of interpreting the scope of a power, it is obvious that wide discretionary power may more readily be inferred to have been confided to one who has high authority and grave responsibility.”

18. Other noble Lords who took part in the case also emphasized the significance of the language which Parliament had used in giving the regulation-making power. Thus Lord Maugham:

“There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary of State” (at p. 219), and see per Lord Romer at pp. 281.2. In these circumstances the House of Lords, with the exception only of Lord Atkin, who delivered a dissenting judgment, found no difficulty in holding that a regulation made under the Act giving the Home Secretary power to detain any person whom he has reasonable cause to believe to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety and so on only required the Secretary of State himself to be reasonably satisfied. Lord Macmillan puts the question in this way:

“Does [the regulation] mean that the Secretary of State must have such cause of belief regarding the relevant facts as a Court of law would hold sufficient to induce belief in the mind of any ordinary reasonable man Or does it mean that he must have such cause of belief as he himself deems to be reasonable To require that a cause of belief shall be reasonable necessarily implies a reference to some standard of reasonableness. Is, the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State's mind or, is it the personal standard of what the Secretary of State himself deems reasonable Between these two readings there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of State had for his belief may if challenged, be examined by a Court of Law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man and to enable the Court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the forum of his own conscience whether he had reasonable cause of belief, and if he has acted in good faith, he called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief”.(p. 248).

19. It may be that the draftsman of the Indian Act and Rules made thereunder intended that S. 2(2)(x) and R. 26 should have an effect similar to that which the House of Lords have now attributed to the Emergency Powers (Defence) Act, 1939, and Regulation 18B. It may be so; but he has used different language. There is in the Indian Act no trace of an intention that any particular person or authority should exercise the power of detention. On the contrary the selection of those who are to exercise this most important and exceptional power is left to be decided by the Rules themselves (i.e., by the executive which makes the Rules). The vast area of the Indian subcontinent, the wholly different problems of government which are to be found there, and the existence of eleven Provinces in addition to the Central Government besides other subordinate governing authorities, no doubt made it a more difficult task to select in advance an individual or individuals in whom these powers might be vested, as was done in the United Kingdom; but, so far as we can see, there is nothing in the Act to prevent these powers being vested in any person or body, however insignificant or subordinate. It is one thing to confer a power to make a regulation empowering the Home Secretary to detain any person if he thinks expedient to do so for a number of specified reasons; it is another thing altogether to confer a similar power on any person whom the Central Government may by rule choose to select or to whom the Central Government may by rule give powers for the purpose.

20. We are therefore left without any such guidance as the House of Lords had in the Liversidge case when we find ourselves called on to decide whether it is enough that the authority which is to be given the power of detention under the Rule should satisfy itself that the suspicions which it entertains are reasonable. If the words in S. 2(2)(x) were “the apprehension and detention in custody of any person suspected by the apprehending or detaining authority on grounds which appear to them to be reasonable” no difficulty would have arisen; but no such formula is used. But, even if we are to read the words as though they ran “the apprehension and detention in custody of any person reasonably suspected by the apprehending or detaining authority”, that does not seem to us necessarily to imply that the authority's own belief in the reasonablness of their suspicions is not open to challenge. It might well be argued that since the apprehending or detaining authority could be any person in India whom the Central Government chose to select when it framed its rules, it can never have been intended that any person could be detained without trial and by mere executive act unless there were reasonable grounds in fact for suspecting that he had brought himself with in the scope of Para. (x).

21. It will be said that the Central Government must be trusted only to make any rules vesting this power in responsible persons or authorities. The Central Government has in fact vested them in itself and in the Provincial Governments, that is to say, the Governor-General in Council and the Governor and those who advise him, whether Ministers or others. In the United Kingdom the number of persons detained under Regulation 18-B, according to public statements made from time to time, has not been so large as to make it impossible for the Secretary of State to consider personally each case. “We may take judicial notice of the fact that the numbers in India on the other hand have been, comparatively speaking, very large; and it is difficult to suppose that the Governor-General in Council or the Governors with their advisers have always been able to give their personal attention to each case; so that the consideration of the facts must have been left in very many instances, to put it no higher, to officials, sometimes no doubt highly placed, but not necessarily so. In these circumstances those in whom the legal right to detain is vested might not always find it easy to form an opinion of their own whether the person apprehended or detained is reasonably suspected or not. If this be so, it would certainly seem that the more natural construction of the words of paragraph (x) is that there must be suspicions which are reasonable in fact and not merely suspicions which some as yet unspecified person or authority might regard as reasonable.

22. We do not however think it necessary to express a final opinion on the difficult point of construction involved in the first of the two questions we have propounded, in view of the answer which we find ourselves compelled to give to the second. The second question was whether a statutory power to make a rule for the detention of persons reasonably suspected of having acted, or acting or being about to act in a manner prejudicial to certain specified matters justifies the making of a rule which empowers Government to detain a person if it is satisfied that it is necessary to do so with a view to prevent him from acting in a manner prejudicial to any of the matters so specified, or to any of certain other specified matters as well. We need hardly point out the divergence between rule 23 and paragraph (x) of S. 2(2) of the Act, which is clearly intended to be the authority for making the rule. The Act authorizes the making of a rule for the detention of persons reasonably suspected of certain things; the rule would enable the Central Government or any Provincial Government to detain a person about whom it need have no suspicions, reasonable or unreasonable, that he has acted, is acting, or is about to act in any prejudicial manner at all. The Government has only to be satisfied that with a view to preventing him from acting in a particular way it is necessary to detain him. The Government may come to the conclusion that it would be wiser to take no risks, and may therefore subject a person to preventive detention against whom there is no evidence or reasonable suspicion of past or present prejudicial act, of any actual intention of acting prejudicially; and rule 26 gives it power to do so. We can find nothing in paragraph (x) which justifies a rule in such terms. The Legislature might have conferred upon the Central Government the power of making a rule as wide as this, but we are clear that it has not yet done so. A rule made under existing statutory powers can only confer a right to detain those persons who fall within the scope of paragraph (x), that is, person reasonably suspected of the things mentioned in that paragraph. There is no power to detain a person because the Government thinks that he may do something hereafter or because it may think that he is a man likely to do it; he must be a person about whom suspicions of the kind mentioned in the paragraph are reasonably entertained. The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words ,in S. 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x); though if paragraph (x) were not in the Act at all, perhaps different considerations might apply (see Rex. v. Halli day). It may be that the Government has only made detention orders in the case of persons who are reasonably suspected in the manner required by paragraph (x), but that is immaterial; the question is not what the Government have in fact done under the rule, but what the rule authorizes them to do; and in our opinion it is impossible so to interpret the rule as to restrict its operation to the suspected person of paragraph (x). We are compelled therefore to hold that rule 26 in its present form goes beyond the rule-making powers which the Legislature has thought fit to confer upon the Government and is for that reason invalid.

23. We have already drawn attention to the addition made to the rule in 1940, which empowers Government to detain persons with a view to preventing them from acting in a manner prejudicial to His Majesty's relations with foreign powers or Indian States and the maintenance of peaceful conditions in tribal areas. These additional words are clearly suggested by entry No. 1 in List I of the Legislative Lists, which authorizes the Central Legislature to legislate with respect to preventive detention for purposes connected with defence and the other matters which we have just mentioned. There can be no doubt therefore that it was competent for the Central Legislature to confer a power to make rules with respect to preventive detention in connection with all these matters; but it seems to us very doubtful whether it can as yet be said to have done so. It has conferred the power to make rules with respect to detention for purposes connected with defence; and from the express mention of defence alone in paragraph (x), it seems to follow that no power has been conferred to make rules with respect to detention for purposes connected with these other matters as such which it is plain that the language of entry No. 1 of List I regards as in a separate category from defence. We are therefore disposed to think that R. 26 would be in any event beyond the rulemaking power which has been conferred, so far as regards the addition made to it by the Notification dated 3rd August, 1940; but having regard however to the view which we take of the rule as a whole, it is unnecessary for us to consider whether or to what extent the addition is severable from the rest of the rule.

24. We think it right to refer to certain observations made by one of the learned Judges in the Court below.

“As I have pointed out there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as ha was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in the seventh Schedule. But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded”.

25. We doubt whether this is a correct statement of the law. If a detaining authority give four reasons for detaining a man, without distinguishing between them and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them. We confess that an order in the terms of that under which the appellant in the present case has been detained fills us with uneasiness. It recites that the Government of Bombay.

“is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety the maintenance of public order and the efficient prosecution of the war”

it is necessary to make an order of detention against him. This reads like a mere mechanical recital of the language of rule 26. We do not know the evidence which persuaded the Government of Bombay that it was necessary to prevent the appellant from acting in a manner prejudicial to the defence of British India the public safety,the maintenance of public order and the efficient prosecution of the war; but we may be forgiven for wondering whether a person who is described as an authorized petition writer on the Insolvency side of the Bombay High Court was really as dangerous a character as the recital of all these four grounds in the order of detention suggests. The order does nothing to remove the apprehension we have already expressed that in many cases the persons in whom this grave power is vested may have had no opportunity of applying their minds to the facts of every case which comes before them.

26. Our attention was drawn in the course of the argument to S. 19 of the Act S. 16(1) provides “no order made in exercise of any power conferred by or under this Act shall be called in question in any Court”. We are clearly of opinion that where the order is made under or by virtue of a rule which is invalid and therefore of no force or effect, the order is a nullity and s. 16(1) has no application.

27. We recognise that our decision may be a cause of inconvenience and possibly of embarrassment, even though temporarily, to the executive authority. We regret that this should be so, especially in these difficult times; but we venture to express an earnest hope that greater care may be taken hereafter to secure that powers of this extraordinary kind which may affect, and indeed have affected, the liberty of so may of the King's subjects in India, may be defined with greater precision and exactitude, so as to reduce to as small a compass as possible the risk that person may find themselves apprehended and detained without legal warrant.

28. The appeal will be allowed and the case remitted to the High Court of Bombay with a direction to the Court to dispose of the appellant's application in the light of the observations made in our judgment.