Puranlal Lakhanpal v. Union of India

S. K. Das J.

Sarkar J. delivered a separate judgment.

S. K. DAS J.-This is an appeal by special leave, and the

appellant is Puran Lal Lakhanpal.'6n July 21, 1956, the

Government of India in the Ministry of Rome Affairs passed

an order of preventive detention against the appellant in

which it was stated, inter alia, that with a view to pre-

venting the appellant from acting in a manner prejudicial to

the security of India and the relations of India with for-

eign powers, it was necessary to make an order against the

appellant. The order then concluded-" Now, therefore, in

exercise of the powers vested in the Central Government by

cl. (a) (i) of sub-s. (1) of s. 3 of the Preventive Deten-

tion Act, 1950 (Act No. IV of 1950), as amended, the Central

Government hereby orders that the said Shri Puran Lal Lak-

hanpal, son of Shri Diwan Chand Sharma, be detained."

The appellant was arrested and taken in custody on the same

date On July 24, 1956, the grounds of detention were commu-

nicated to the appellant under s. 7 of the Preventive Deten-

tion Act, No. IV of 1950, hereinafter referred to as the

Act. The case of the appellant was then sent to an Advisory

Board constituted under s. 8 of the Act, and the Advisory

Board having reported that there was, in its opinion, suffi-

cient Gause for detention of the appellant, the Central

Government confirmed the order of detention on August 20,

1956, and stated further that the appellant ",shall continue

in detention for a period of twelve months from the date of

his detention". This order was passed under sub-s. (1) of

s. 11 of the Act.

Before that date, however, the appellant moved the Punjab

High Court as also this Court challenging the legality of

his detention and asked for the :issue of a writ in the

nature of a writ of habeas corpus. The petition to this

Court was dismissed and as nothing turns upon that petition,

no further reference need be

made to it. In the petition to the Punjab High Court under

Art. 226 of the Constitution, the appellant was permitted to

urge an additional ground to the effect that sub-s. (1) of

s. 11 of the Act was unconstitutional inasmuch as it offend-

ed against Art. 22(4)(a) of the Constitution. This consti-

tutional point was referred to and decided by a Division

Bench of the Punjab High Court by an order dated September

24, 1956. The High Court held that sub-s. (1) of s. 11 of

the Act was neither repugnant to nor inconsistent with the

provisions of Art. 22(4) of the Constitution. A single

Judge of the High Court then dealt with the petition of the

appellant on merits and dismissed it by an order dated

September 26, 1956. The appellant then moved the Punjab

High Court unsuccessfully for leave to appeal to this Court.

He then moved this Court, and obtained special leave to

appeal from the aforesaid orders of the Punjab High Court

dated September 24, and September 26, 1956, respectively.

We heard the appellant, who argued his case ill person, on

May 22, 23 and 24, 1957. At the conclusion of the arguments

on the last day of the term before the commencement of the

vacation, we intimated to the appellant the majority deci-

sion of the Court that his appeal was dismissed, but stated

that reasons for the decision would be given later. These

reasons we now propose to give in the paragraphs that fol-

low.

The first and foremost point which the appellant has urged

in support of his appeal is the constitutional point, that

is, the validity of sub-s. (1) of s. 11 of the Act. The

argument of the appellant is that sub-s. (1) of s. 11 of the

Act does not conform to the constitutional mandate given by

sub- cl. (a) of cl. (4) of Art. 22 of the Constitution.

Therefore, our primary duty is " to lay the Article of the

Constitution which is invoked beside the statute which is

challenged and to decide whether the latter squares with the

former ". Article 22 of the Constitution, in so far as it is

relevant for our purposes, is in these terms:

"22.

(1)…………………………………………..

(2)……………………………………………

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alien

; or

(b) to any person who is arrested or detained under any

law providing for preventive detention.

(4) No law providing for preventive detention shall autho-

rise the detention of a person for a longer period than

three months unless-

(a) an Advisory Board consisting of persons who are, or

have been, or are qualified to be appointed as, Judges of a

High Court has reported before the expiration of the said

period of three months that there is in its opinion suffi-

cient cause for such detention:

Provided that nothing in this sub-clause shall authorise the

detention of any person beyond the maximum period prescribed

by any law made by Parliament under sub-clause (b) of clause

(7); or

(b) such person is detained in accordance with the provi-

sions of any law made by Parliament under sub-clauses (a)

and (b) of clause (7).

(5) 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, commu-

nicate 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.

(6) Nothing in clause (5) shall require the authority

making any such order as is referred to in that clause to

disclose facts which such authority considers to be against

the public interest to disclose.

(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 preven-

tive 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 provid-

ing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an

inquiry under sub-clause (a) of clause (4)."

Section 11 of the Act, which is challenged as unconstitu-

tional states :

" 11. (1) In any case where the Advisory Board has reported

that there is in its opinion sufficient cause for the deten-

tion of a person, the appropriate Government may confirm the

detention order and continue the detention of the person

concerned for such period as it thinks fit.

(2) In any case where the Advisory Board has reported that

there is in its opinion no sufficient cause for the deten-

tion of the person concerned, the appropriate Government

shall revoke the detention order and cause the person to be

released forthwith."

Now, the point taken by the appellant is this. According to

him, the expression such detention' occurring in sub-cl. (a)

of cl. (4) of Art. 22 refers not merely to the original

order of preventive detention but to the detention of a

person for a period longer than three months; therefore, the

Advisory Board when it makes . its report is required under

the Sub-clause to record its opinion that there is suffi-

cient cause not merely for the original order of detention

but also for detention of that person for a period longer

then three months. It is contended that such an opinion was

not recorded by the Advisory Board in the present case, and

Sub-s. (2) of s. 10 of the Act merely required the report of

the Advisory Board to specify its opinion as to whether or

not there was sufficient cause for the detention of the

appellant. The appellant's contention is that sub-s. (1) of

s. 11 of the Act, in so far as it permits the appropriate

Government to continue the detention of the person concerned

beyond a period of three months without a specific report

from the Advisory Board that there is sufficient cause for

his detention for more than three months, is ultra vires;

because it does not conform to sub-cl. (a) of cl. (4) of

Art. 22, nor does it give effect to the true meaning of the

expression 'such detention' occurring in the ;aid sub-

clause.

On behalf of the respondent, the argument is that the ex-

pression 'such detention' occurring in sub-cl. (a,) of cl.

(4) of Art. 22 refers back to 'preventive detention' occur-

ring in the first line of el. (4), and under the said sub-

clause the Advisory Board is to give its opinion as to

whether there is sufficient cause for the detention of the

person concerned; there is no duty cast on the Advisory

Board to determine the period of detention, and the failure

of the Advisory Board to state in its report that there is

sufficient cause for the detention of the person concerned

for more than three months is no violation of the constitu-

tional mandate contained in the said sub-clause.

We have to determine the correctness or otherwise of these

rival contentions. No decision directly deciding the point

at issue has been brought to our notice. There are, howev-

er, certain observations made in A. K. Gopalan v. The State

of Madras (1), with regard to the meaning and effect of sub-

cl. (a) of cl. (4) of Art. 22, to which a reference must now

be made. At page 117 of the report, Kania C. J. said:

" Article 22(4) opens with a double negative. Put in a

positive form it will mean that a law which provides for

preventive detention for a period longer than three months

shall contain a provision establishing an advisory board,

(consisting of persons with the qualifications mentioned in

sub-clause (a)), and which has to report before the expira-

tion of three months if in its opinion there was sufficient

cause for such detention. This clause if it stood by itself

and without the remaining provisions of Article 22, will

apply both to the Parliament and the State Legislatures.

The proviso to this clause further enjoins that even though

the advisory board may be of the opinion that there was

sufficient cause for such detention, i.e., detention beyond

the period of three months, still the detention is not to be

permitted beyond the maximum period, if any, prescribed by

Parliament under Article 22(7)(b). Again the whole of this

sub-clause is made inoperative by Art. 22(4)(b) in respect

of an Act of preventive detention passed by Parliament under

clauses (7)(a) and

(b) Inasmuch as the impugned Act is an Act of the

(1) [1950] S.C.R. 88, 117.

Parliament purported to be so made, clause 22(4) has no

operation and may for the present discussion be kept aside."

His Lordship was considering the Act of 1950 previous to the

amendments subsequently made therein from 1951 onward, and

the observations appear to establish the following three

points: first, clause (4) of Art. 22, put in affirmative

form, has reference to a law which provides for preventive

detention and authorises detention for a period longer than

three months; second, the expression 'such detention' has

again reference to such a law providing for detention beyond

a period of three months; and lastly, el. (4) of Art. 22 had

no application to the Act of 1950 as it then stood. We

shall presently show that the first and the second points do

not really support the appellant's contention, and the last

had particular reference to ss. 9 and 12 of the Act of 1950,

as it then stood. The appellant has, however, pointed out

that under the Act as it now stands, every order of deten-

tion has to be placed before the Advisory Board (a. 9 of the

Act) and the Advisory Board has to report about every order

of detention (s. 10 of the Act). Though under s. II A of

the Act the maximum period for which any person may be

detained in pursuance of a detention order which has been

confirmed under s. 11, is twelve months from the date of

detention, the Act now contains no provisions as to the

circumstances under which, or the class or classes of cases

in which, a person may be detained for a period longer than

three months without obtaining the opinion of the Advisory

Board; therefore, the argument of the appellant is that the

last point made by the observations of Kania C.J. is no

longer valid in view of the amendments made in the Act of

1950. We have proceeded in this case on the footing that

sub-cl. (a) of el. (4) of Art. 22 applies to the Act as it

stands after the amendments, and even on that footing there

is, in our opinion, no inconsistency between that sub-clause

and the impugned provisions of the Act, as we shall present-

ly explain.

In his dissentient judgment in Gopalan's case (supra), Fazl

Ali J., made the following observations with

regard to cl. (4) of Art. 22. Said his Lordship at pages

170 and 171 of the report :

" In connection with the first point, the question arises as

to the exact meaning of the words I such detention' occur-

ring in the end of clause (4)(a). Two alternative interpre-

tations were put forward: (1) 'such detention' means preven-

tive detention; (2) 'such detention' means detention for a

period longer than three months. If the first interpreta-

tion is correct, then the function of the advisory board

would be to go into the merits of the case of each person

and simply report whether there was sufficient cause for his

detention. According to the other interpretation, the

function of the advisory board will be to report to the

Government whether there is sufficient cause for the person

being detained for more than three months. On the whole, I

am inclined to agree with the second interpretation. Prima

facie, it is a serious matter to detain a person for a long

period ( more than three months) without any enquiry or

trial. But article 22(4) (a) provides that such detention

may be ordered on the report of the advisory board. Since

the report must be directly connected with the object for

which it is required, the safeguard provided by the article,

viz., calling for a report from the advisory board, loses

its value, if the advisory board is not to apply its mind to

the vital question before the Government, namely, whether

prolonged detention (detention for more than three months)

is justified or not. Under article 22 (4) (a), the advisory

board has to submit its report before the expiry of three

months and may therefore do so on the eighty-ninth day. It

would be somewhat farcical to provide, that after a man has

been detained for eighty-nine days, an advisory board is to

say whether his initial detention was justified. On the

other hand'. the determination of the question whether

prolonged detention (detention for -more than three months)

is justified must necessarily involve the determination of

the question whether the detention was justified at all, and

such an interpretation only can give real meaning and effec-

tiveness to the provision. The provision being in the

nature of a

protection or safeguard, I must naturally lean towards the

interpretation which is favourable to the subject and which

is also in accord with the object in view." These observa-

tions, it is urged, support the appellant's contention.

Patanjali Sastri J. (as he then was) took a view different

from that of Fazl Ali J. in Gopalan's case (supra), and made

the following observations at pages 209 and 210 of the

report:

" It was argued that the words I sufficient cause for such

detention' in sub-clause (a) of clause (4) had reference to

the detention beyond three months mentioned in clause (4)

and that this view was supported by the language of sub-

clause (a) of clause (7) whereby Parliament is authorised to

prescribe 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 without the opinion of an

advisory board. In other words, learned counsel submitted,

the combined effect of clauses (4) and (7) was that no

person could be detained for a period over three months

without obtaining the opinion of an advisory board that

there was sufficient cause for detention for the longer

period, except in cases where Parliament passed a law autho-

rising detention for such period even without the opinion of

an advisory board. Thus, these two clauses were concerned

solely with the duration of the preventive detention, and so

was the advisory board which those clauses provided for that

purpose. I am unable to accept this view. I am inclined to

think that the words 'such detention' in sub-clause (a)

refer back to the preventive detention mentioned in clause

(4) and not to detention for a longer period than three

months. An advisory board, composed as it has to be of

Judges or lawyers, would hardly be in a position to judge

how long a person under preventive detention, say, for

reasons connected with defence, should be detained. That

must be a matter for the executive authorities, the Depart-

ment of Defence, to determine, as they alone are responsible

for the defence of the country and have the necessary data

for taking a decision on the point. All that an

advisory board can reasonably be asked to do, as a safeguard

against the misuse of the power, is to judge whether the

detention is justified and not arbitrary or mala fide. The

fact that the advisory board is required to make its report

before the expiry of three months and so could submit it

only a day or – two earlier cannot legitimately lead to an

inference that the board was solely concerned with the issue

whether or not the detention should continue beyond that

period. Before any such tribunal could send in its report a

reasonable time must elapse, as the grounds have to be

communicated to the person detained, he has to make his

representation to the detaining authority which has got to

be placed before the board through the appropriate depart-

mental channel. Each of these steps may, in the course of

official routine, take sometime, and three months' period

might well have been thought a reasonable period to allow

before the board could be required to submit its report."

These observations are undoubtedly against the contention of

the appellant.

It is necessary to consider the whole scheme of Art. 22 in

order to appreciate the true scope. and effect of cl. (4).

Article 22 provides for protection against arrest and deten-

tion in certain cases. Clauses (1) and (2) refer to arrest

and detention in certain circumstances and provide for

certain safeguards. Clause (3) then states, inter alia,

that nothing in cls. (1) and (2) shall apply to any person

who is arrested or detained under any law providing for "

preventive detention"; in other words, a law relating to "

preventive detention" is put in a special category and is

dealt with in clauses (4) to (7). The power to legislate

laws of preventive detention is given to Parliament and the

State Legislatures by the Constitution. This power, howev-

er, is not absolute, but is controlled by the provisions of

cls. (4), (5), (6) and (7) of Art. 22. The maximum period

of detention is not prescribed by the Constitution, but

Parliament may by law prescribe such a period. The Consti-

tution contemplates that any law which authorises detention

for more than three months should be subject to certain

safeguards,

as provided in cl. (4) of Art. 22 which directs that the

case of a detained person under any law authorising deten-

tion for more than three months must be the subject of a

report by an Advisory Board. The Advisory Board is to

report whether there is sufficient cause for such detention.

If the Advisory Board reports that the detention is justi-

fied, then only the detaining authority determines the

period of detention. On the other hand, if the Advisory

Board reports that the detention is not justified, the

detained person must be released. Clause (4) of Art. 22

does not state that the Advisory Board has to determine

whether the person detained should be detained for more than

three months. What it has to determine is whether the

detention is at all justified. The setting up of an Adviso-

ry Board to determine whether such detention is justified is

considered as a sufficient safeguard against arbitrary

detention under any law of preventive detention which autho-

rises detention for more than three months. The matter

before the Advisory Board is the subject of detention of the

person concerned and not for how long he should be detained.

Clause (7) of Art. 22 is an exception to cl. (4) of that

Article. It authorises Parliament alone to pass a law of

preventive detention authorising detention of a person for

more than three months without obtaining the opinion of an

Advisory Board so long as the circumstances under which and

the class or classes of cases in which a person may be

detained for a longer period than for three months are set

out in the enacted law. The Constitution evidently does not

contemplate detention of the person for a period of three

months or less as sufficiently serious to have the safeguard

of a report by an Advisory Board to the effect that there is

sufficient cause for detention. Under the Constitution an

Advisory Board is to be set up for all cases of detention

under a law authorising detention for more than three

months. When the -case of a detained person is placed

before the Advisory Board under such law it must be assumed

that the Advisory Board knows that if it reports that the

detention is justified, the detenu may be detained for more

than three

months and up to the maximum period provided by the law.

The expression " such detention" in Art. 22 (4) (a) refers

to preventive detention and not to how long the person is to

be detained.

Moreover, it is clear that clause (4) lays down prohibition

against any law providing for detention for more than three

months without a provision foran Advisory Board, and cl.'

(5) provides for furnishing the grounds of detention and

affording an opportunity of making a representation against

the order of detention. But these safeguards are subject to

cls. (6) and (7). Under the former, facts, the disclosure

of which the detaining authority considers against the

public interest, are not required to be furnished. Under

the latter, Parliament may prescribe the circumstances under

and the class or classes of cases in which a person may be

detained for a period longer than three months without

obtaining the opinion of an Advisory Board. The Constitu-

tion has therefore in one case given discretion to the

Executive not to furnish facts in certain circumstances and

in the other case left it to Parliament to prescribe cases

or classes of cases in which reference to the Board need not

be made. Therefore, both the furnishing of grounds and the

report of the Board are, in a sense, limited safeguards.

Considering the circumstance that the detention is of a

preventive nature, the Executive has necessarily to consider

whether a person should be detained and the period for which

he should be detained. It could not have been the intention

to give the power of determining the necessity of detention

of a particular person to the Executive, and leave to anoth-

er authority-the Board in this case-to say whether the

detention should be for three months or more. In the very

nature of things the decision as to the period of detention

must be of the detaining authority, because it is the au-

thority upon which responsibility for detention has been

placed. The reference to the Board is only a safeguard

against Executive vagaries and high-handed action and is a

machinery devised by the Constitution to review the decision

of the Executive

on the basis of a representation made by the detenu, the

grounds of detention, and where the order is by an officer,

the report of such officer. It is not a limitation on the

Executive's discretion as to the discharge of its duties

connected with preventive detention.; it is a safeguard

against misuse of power.

What then is the scheme of the Act under our consideration ?

An order of detention is made under s. 3 of the Act. If the

order is made by any officer under sub-s. (2) of s. 3, a

report has to be submitted to the State Government to which

the officer is subordinate and the order does not remain in

force for more than twelve days unless in the meantime it

has been approved by the State Government. Under s. 7 of

the Act, the grounds of detention have to be communicated to

the detenu, as soon as may be but not later than five days

from the date of detention. Section 8 relates to the con-

stitution of an Advisory Board. Under s. 9 in every case

where a detention order has been made under the Act, the

appropriate Government shall, within thirty days from the

date of detention under the order, place before the Advisory

Board the grounds on which the order has been made and the

representation, if any, made by the detenu. Section 10

prescribes the procedure of the Advisory Board and lays down

that the Advisory Board must submit its report to the appro-

priate Government within ten weeks from the date of deten-

tion. Sub-s. (2) of s. 10 states that the report of the

Advisory Board shall specify in a 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.

Then comes s. I I which we have already quoted in extensor

The scheme of the Act has been explained in several deci-

sions of this Court. In Makhan Singh Tarsikka v. State of

Punjab (1), it was stated that whatever might be the posi-

tion under the Preventive Detention Act of 1950, before it

was amended in 1951, under the Act as amended in 1951, the

Government must determine what the period of detention

should be only after the Advisory Board to which the case

(1)) [1932] S.C.R. 368, 370.

is referred reports that the detention is justified. Patan-

jali Sastri C. J. observed:

" It is, therefore, plain that it is only after the Advisory

Board, to which the case has been referred, reports that the

detention is justified, the Government should determine what

the period of detention should be and not before. The

fixing of the period of detention in the initial order

itself in the present case was, therefore, contrary to the

scheme of the Act and cannot be supported."

In Dattatreya Moreshwar Pangarkar v. State of Bombay(1)

Mukherjea J. (as he then was) said:

" It is now settled by a pronouncement of this Court that

not only it is not necessary for the detaining authority to

mention the period of detention when passing the original

order under s. 3(1) of the Preventive Detention Act, but

that the order would be bad and illegal if any period is

specified, as it might prejudice the case of the detenu when

it goes up for consideration before the Advisory Board. The

Advisory Board again has got to express its opinion only on

the point as to whether there is sufficient cause for deten-

tion of the person concerned. It is neither called upon nor

is it competent to say anything regarding the period for

which such person should be detained. Once the Advisory

Board expresses its view that there is sufficient cause for

detention at the date when it makes its report, what action

is to be taken subsequently is left entirely to the appro-

priate Government and it can under s. 11 (1) of the Act i

confirm the detention order and continue the detention of

the person concerned for such period as it thinks fit'. In

my opinion, the words 'for such period as it thinks fit'

presuppose and imply that after receipt of the report of the

Advisory Board the detaining authority has to make up its

mind as to whether the original order of detention should be

confirmed and if so, for what further period the detention

is to continue. Obviously, that is the proper stage for

making an order or decision of this description as the

(1) [I952] S.C.R. 612, 626,

investigation with regard to a particular detenu such as is

contemplated by the Preventive Detention Act is then at an

end and the appropriate Government is in full possession of

all the materials regarding him."

At page 637 of the report, the learned Judge further said:

" Under the Constitution, the detention of a ,person under

any law providing for preventive detention cannot be for a

period of more than three months unless the Advisory Board

is of the opinion that there is sufficient cause for the

detention of the person concerned. The Constitution itself

has specified the maximum limit of the initial detention and

detention for a period longer than three months can only be

made on the basis of the report of the Advisory Board."

In view of these observations, it is quite clear what the

scheme of the Act is. The Act authorises a possible deten-

tion of more than three months; the order of detention is

therefore referred to the Advisory Board, and it is only

when the Advisory Board makes its report that the appropri-

ate Government fixes the period of detention under sub-s.

(1) of s. 11 of the Act.

For all these reasons, we hold that Sub-s. (1) of s. 11 of

the Act does not contravene any of the provisions of Art. 22

and is accordingly valid.

We now proceed to give our reasons with regard to those

points on merits which have been urged before us by the

appellant. The appellant has contended that the grounds of

detention communicated to him are all vague, except ground

No. 2, and that the grounds so communicated did not give him

an opportunity of making an effective representation, a

right guaranteed to him under el. (5) of Art. 22. The

grounds except ground No. 2 were these:

"1. That since the last two yars you are in constant touch

with foreign correspondents in India and representatives of

foreign countries to whom you have been spreading reports

and information about conditions in the State of Jammu and

Kashmir which are false and calculated to prejudice the

relations of

India with foreign powers and also to prejudice the security

of the State.

3. That you are in constant touch with certain persons in

Pakistan and Pakistani occupied part of Jammu and Kashmir

who are hostile to India and you are assisting these persons

in their activities which are prejudicial to the security of

India.

4. That you are receiving financial assistance from persons

in Pakistan and Pakistani occupied part of Jammu and Kashmir

for supporting and furthering your aforesaid prejudicial

activities.

5. That you are in regular connection with persons in India

who are engaged in promoting false propaganda against India

in relation to Kashmir and have been attending their secret

meetings for planning action and propaganda in relation to

Kashmir prejudicial to the security of India.

6. The Central Government is satisfied that you are likely

to act in a manner prejudicial to the security of India and

in a manner prejudicial to the relations of India with

foreign powers and with a view to prevent you from so acting

has passed the order for your detention."

The same document which communicated the grounds of deten-

tion to the appellant also contained the following statement

in paragraph 7:

" The Central Government is satisfied that it is against the

public interest to disclose to you any facts or particulars

as to dates, persons and places and the nature of your

activities and the assistance received or otherwise than

those which have been already mentioned."

The argument of the appellant is that by refusing to dis-

close any facts or particulars as to dates, persons and

places, the detaining authority has really deprived the

appellant of the valuable right guaranteed to him under cl.

(5). This contention of the appellant is concluded by the

recent decision of this Court in Lawrence Joachim Joseph

D'Souza v. The State of Bombay (1). It

(1) [1956] S.C.R. 382.

was held therein that the right of the detenu to be fur-

nished with facts or particulars was subject to the limita-

tion mentioned in cl. (6) and even if the grounds communi-

cated were not as precise and specific as might have been

desired, the appropriate authority had the right to withhold

such facts or particulars, the disclosure of which it con-

sidered to be against the public interest. Such a privilege

having been exercised in the present case, the appellant

cannot be heard to say, apart from the question of mala-

fides, that the grounds did not disclose the necessary facts

or particulars, or that in the absence of such facts or

particulars, he was not in a position to make an effective

representation. In The State of Bombay v. Atma Ram Sridhar

Vaidya(1) this Court has unanimously held that under s. 3 of

the Act, it is the satisfaction of the appropriate authority

which is necessary for an order of detention, and if the

grounds, on which the appropriate authority has said that it

is so satisfied, have a rational connection with the objects

which are to be prevented from being attained, the question

of satisfaction cannot be challenged in a court of law

except on the ground of malafides. It has been further held

by the majority that cl. (5) of Art. 22 confers two rights

on the detenu, namely, first, a right to be informed of the

grounds on which the order of detention has been made, and

secondly, to be afforded the earliest opportunity to make a

representation against the order. If grounds which have a

rational connection with the objects mentioned in s. 3 are

supplied, the first condition is complied with. But the

right to make a representation implies that the detenu

should have such information as will enable him to make a

representation and if the grounds supplied are not suffi-

cient to enable the detenu to make a representation, he can

rely on the second right. The second right, however, is

again subject to the right of privilege given by cl. (6) and

as has been pointed out in Lawrence D'Souza's case, (supra),

the obligation to furnish grounds and the duty to consider

whether the disclosure of any facts involved therein is

against public interest, are both

(i) [1951] S.C.R. 167.

vested in the detaining authority and not in any other.

As in Lawrence D'Souza's case (supra), it is unnecessary in

the present case to consider the theoretical contention as

to whether or not Art. 22(6) of the Constitution overrides

the constitutional right to be furnished grounds under Art.

22(5) to the extent of denying all the particulars and

leaving the grounds absolutely vague. We are of the opinion

that in the present case the grounds furnished to the appel-

lant, though not as precise and definite as might be de-

sired, gave him a sufficient opportunity of exercising his

right under cl. (5) of Art. 22 of the Constitution.

With regard to ground No. 2, the appellant, has urged the

following points. Ground No. 2 communicated to the appel-

lant is in these terms:

" 2. That you addressed a Press Conference at New Delhi on

the 18^th day of February, 1956, which was attended by a

large body of Press Correspondents of foreign countries and

that you made a speech (copy of contents of which is hereto

annexed) containing various false statements about the

conditions of the people of Kashmir. The combined effect of

these statements is prejudicial to the security of India and

to the relations of India with foreign powers. Extracts of

such statements are given below: (then follow the

extracts)."

It is argued (1) that detention on this ground is more

punitive than preventive; (2) that it is not relevant to the

objects for which the appellant has been detained, namely,

the security of India and her relations with foreign powers;

and (3) that there are verbal inaccuracies in reciting the

ground, with particular reference to what happened at the

Press Conference on February 18, 1956. We have considered

each one of these arguments and are of the view that not one

of them has any substance. Firstly, the ground no doubt

relates to what happened on February 18, 1956; that does

not, however, mean that the detention of the appellant is

punitive in character. What the appellant is likely to do

in future must, to a large extent,

be inferred from his past conduct. Secondly, we think that

the ground has a rational connection with the objects which

the appellant has to be prevented from attaining. The

objects of the appellant's detention are to prevent him from

acting in a manner prejudicial to (1) the security of India

and (2) her relations with foreign powers. Both these

object,%, we think, come within the ground in question.

Thirdly, the verbal inaccuracies relied on by the appellant

are all so inconsequential in nature that we do not think it

necessary to state them in detail. By way of an example, it

may be stated that in the extract enclosed with the ground,

there is a statement to this effect: "it would be no exag-

geration to state that were a plebiscite to be held there

today, over 90% of Kashmiris would vote against -India etc."

In his actual statement, however, the appellant said: "It

would not be an exaggeration to state that were a plebiscite

to be held there today, over 90% of Kashmirs would vote

against India etc." The only difference between the two is

that instead of the word 'not', the word 'no' has been used

in the extract; otherwise, there is no difference between

the two statements. Such verbal differences are not inaccu-

racies at all, and we are unable to accept the contention of

the appellant that the detaining authority did not apply its

mind to the grounds communicated to him.

Lastly, the appellant has raised the question of mala fides.

This question has been considered at great length by the

learned Judge of the Punjab High Court who dealt with the

petition of appellant. The appellant referred in his affi-

davit to some of his activities from 1954 onwards and to

certain events which happened between 1954 and 1956. He

also referred to certain statements alleged to have been

made by the Prime Minister and the Home Minister, and he

averred that both of them were annoyed with him for his

activities and therefore the order of detention was not bona

fide. We are unable to accept this contention. We agree

with the learned Judge of the High Court that the activities

of the appellant and the events of 1954 to 1956 referred to

by the appellant, do not in any way

show that the order of detention made against the appellant

was made for any ulterior purpose or for purposes other than

those mentioned in the detention order. On the question of

mala fldes, it is not a relevant consideration whether the

activities of the appellant were liked or disliked by the

authorities concerned. The only relevant consideration is

if the order of detention was made for ulterior purposes or

purposes other than those mentioned in the detention order.

On the materials placed before us, we unhesitatingly hold

that no mala fides have been established.

These are our reasons for the order which we passed on May

24, 1957, dismissing the appeal.

SARKAR J.-This appeal arises out of an application for the

issue of a writ of habeas corpus. In my view the appeal can

be disposed of on one ground, and in this judgment I propose

to deal with that ground alone.

On July 21, 1956, the appellant was taken into custody under

an order of detention passed against him by the Government

of India under the Preventive Detention Act, 1950 (Act, IV

of 1950). On July 24, 1956, the appellant was served with

the grounds on which the order of detention had been passed

as required by the Act. The appellant thereafter made a

representation against the order which was con sidered by

the Advisory Board, constituted under the Act. On August

22, the appellant was served with another order made by the

Government of India wherein it was stated that the Advisory

Board bad reported that there was in its opinion, sufficient

cause for the detention of the appellant. This order fur-

ther stated that in view of the report of the Advisory Board

the Government of India confirmed the detention order earli-

er made against the appellant and that the appellant should

continue in detention for a period of 12 months from the

date of his detention. The appellant challenged the legali-

ty of these orders of detention and moved the High Court of

Punjab for the issue

of an appropriate writ for his release. The petition was

dismissed by the High Court. Hence this appeal.

The petitioner challenges the validity of the orders of

detention on the ground that the provision of the Preventive

Detention Act, 1950, under which they were made is ultra

vires the Constitution. I have come to the conclusion that

this objection to the Act is sound and that is why I do not

find it necessary to discuss the other contentions raised by

the appellant.

The contention of the petitioner is based

on Art. 22(4)(a) of the Constitution. The relevant portion

of the article is set out below:

(4) No law providing for preventive detention shall autho-

rise the detention of a person for a longer period than

three months unless-

(a) an Advisory Board consisting of persons who are, or

have been, or are qualified to be appointed as, Judges of a

High Court has reported before the expiration of the said

period of three months that there is in its opinion suffi-

cient cause for such detention :

Provided that nothing in this sub-clause shall authorise the

detention of any person beyond the maximum period 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).

……………………………………………….

(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 preven-

tive 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 provid-

ing for preventive detention; ……………………….

The position, therefore, is that unless Parliament by law

otherwise prescribes, the provisions of cl. (4)(a) of Art.

22 have to be complied with by any law providing for preven-

tive detention. Parliament -has passed no law prescribing

otherwise. The Preventive Detention Act, 1950, has, there-

fore, in order to be constitutional to satisfy Art.

22(4)(a). The appellant's contention is that it does not do

this. Though the words used are somewhat obscure, it is

fairly clear, as was accepted at the Bar, that the required

provision for the report of the Advisory Board has to be

made in the law authorising preventive detention and it is

not by the force of Art. 22(4)(a) itself that that report

has to be obtained.

The present Act authorises a maximum period of detention of

12 months from the date of detention. It is therefore a law

providing for preventive detention and it authorises the

detention of a person for a longer period than three months.

It must hence contain provisions satisfying sub-cl. (a) of

el. (4) of Art. 22 if it is intended to detain a person

under it for a period longer than three months. It has to

provide that if under it detention for a period longer than

three months is to be ordered then an Advisory Board, con-

stituted as specified, must report that there is in its

opinion sufficient cause for such detention. So much is not

in dispute. The difficulty is caused by the words " such

detention ". The appellant contends that they mean detention

for a period longer than three months and therefore an Act

authorising preventive detention for more than three months

has to provide that the Advisory Board must report that

there is sufficient cause for detention for a period longer

than three months. The Act in this case does make provi-

sions for the constitution of the Advisory Board and for

submitting all cases of detention irrespective of their

periods of detention to it for its opinion as to whether or

not there is sufficient cause for detention, but it does not

provide that where it is intended to detain a person for a

period longer than three months then the Advisory Board must

report that there was sufficient

cause for detention for a period longer than three months.

The provision for the opinion of the Advisory Board is

contained in s. 10(2) of the Act which is in the following

terms:

S. 10(2).-The report of the Advisory Board shall specify

in a 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 therefore the appellant is right in his contention that

the words " such detention " mean detention for a longer

period than three months then the provisions of the Act

authorising detention for more than three months must be

held to be ultra vires. The question is, what do these

words mean?

As a matter of pure construction of the language used in

sub-cl. (a) it seems tome that the words " such detention "

must mean detention for a longer period than three months.

The word "such" means, of the kind or degree already de-

scribed. Of the meanings of the word" such" given in the

Oxford Dictionary this I find to be the only one appropriate

in the present context. Learned counsel for the respondent

did not suggest any other meaning. Now what is the kind or

degree of detention that is earlier described in the clause

? The only kind that 1 find is detention for a longer period

than three months. That being so, I feel compelled to

accept the appellant's contention.

The learned Solicitor-General opposing the appeal contended

that the words "such detention " were capable of two mean-

ings, namely, detention simpliciter and detention for a

period longer than three months. He advanced certain rea-

sons why of the two possible constructions the first one

should be accepted. I will come to the reasons later.

Before doing so I wish to state that I am unable to agree

that the words " such detention " are capable of two mean-

ings. Clause (4) contemplates a law of preventive detention

but does not authorise such law. Such a law is within the

legislative competence of the Parliament and the State

legislatures : See Art. 246 of the Constitution, item 9 of

list I and item 3 of list III in the Seventh Schedule

to the Constitution.- Having contemplated such a law, what

cl. 4 proceeds to do is to lay down that, that law shall not

authorise the detention of a person for a longer period than

three months unless the Advisory Board has reported that

there is in its opinion sufficient cause for such detention.

It only imposes a limitation on the power to pass laws

authorising preventive detention. This is what Das J. said

in A. K. Gopalan v. The State of Madras (1). He there said

(p. 324), it articles 21 and 22 have put a limit on the

power of the State given under Art. 246 read with the legis-

lative lists". Therefore the only object that cl. (4)

purports to deal with is detention for a period longer than

three months under a law of preventive detention the exist-

ence of which it assumes. Hence the words " such detention

" must necessarily refer to detention for a period longer

than three months. There is nothing else to which it can

refer. Preventive detention without reference to the period

of it is not in contemplation of cl. (4) at all. A law for

preventive detention is mentioned. The words " such deten-

tion " cannot possibly refer to that law. That law may, no

doubt, provide for detention for a shorter period but such

shorter detention is not mentioned in the clause nor really

in its contemplation at all. So no question of the words "

such detention " referring to the shorter detention arises.

But suppose the learned Solicitor-General was right in his

contention that the words, in the context they are used, are

capable of referring both to preventive detention simplicit-

er and to preventive detention for a period longer than

three months, are there reasons for preferring the first of

the two alternative constructions ? I am unable to find any.

The learned Solicitor-General said that if the words were

referable only to a detention for a period longer than three

months then people detained for a shorter period would be

deprived of the safeguard of the opinion of the Advisory

Board and lose the chance of being set free if it expressed

the view that there was no sufficient cause for detention.

That no doubt would be so. But I find

(i) [1950] S.C.R. 88.

nothing in the language of cl. (4) to show that such a

safeguard was intended. If the language does not support

such an intention, then of course this argument must fail,

however much the court may like the safeguard to be provided

in all cases of detention. If it was the intention of the

Constitution to provide such a safeguard it would not have

required that the report of the Advisory Board should be

made before the expiry of the three months. That is what

Fazl Ali, J., said in Gopalan's case (1) at page 171 :

" Under Art. 22 (4) (a), the Advisory Board has to submit

its report before the expiry of three months and may there-

fore do so on the eighty-ninth day. It would be somewhat

farcical to provide, that after a man has been detained for

eighty-nine days, an advisory board is to say whether his

intial detention was justified. "

As the Constitution could not have contemplated the situa-

tion mentioned by Fazl Ali, J., it could not have intended

that all cases of detention irrespective of their periods

must also be placed before the Advisory Board. It follows

that it did not mean to provide the safeguard referred to by

the learned Solicitor-General. In fact, all the other

learned Judges who heard Gopalan's case (1), excepting

Patanjali Sastri, J., expressed the same view. I set out

below what they said:

Kania, C.J., (page 118 of the Report):

"Reading article 22 clauses (4) and (7) together it appears

to be implied that preventive detention for less than three

months, without an advisory board, is permitted under the

Chapter on Fundamental Rights, provided such legislation is

within the legislative competence of the Parliament or the

State Legislature, as the case may be. "

Mahajan, J., (p. 228):

" If the intention of the Constitution was that a, law made

on the subject of preventive detention had to be tested on

the touchstone of reasonableness, then it would not have

troubled itself by expressly making provision in article 22

about the precise scope of the limitation subject to which

such a law could be made

(1) [1950] S.C.R. 88.

and by mentioning the procedure that the law dealing with

that subject had to provide. Some of the provisions of

article 22 would then have been redundant, for instance, the

provision that no detention can last longer that three

months without the necessity of such detention being exam-

ined by an advisory board.

Again at p. 237:

" Clause (4) of article 22 enjoins……………… that no

law can provide for preventive detention for a longer period

than three months without reference to an advisory board. "

Mukherjea, J., (p. 281):

" Preventive detention can be provided for by law for rea-

sons connected with six different matters specified in the

relevant items in the legislative lists, and whatever the

reasons might be, there is a provision contained in article

22 (4) (a) which lays down that detention for more than

three months could not be permitted except with the sanction

of the advisory board. "

Das, J., (p. 326):

"In short, clause (4) of article 22 provides a limi-

tation on the legislative power as to the period of prevent-

ive detention. Apart from imposing a limitation on the

legislative power, clause (4) also prescribes a procedure of

detention for a period longer than three months by providing

for an advisory board."

The learned Solicitor-General then contended that Art. 22

dealt both with preventive detention and other kinds of

detention. Thus clauses (1) & (2) dealt with other kinds of

detention while clause (4) and the remaining clauses of the

article dealt with preventive detention. Clause (3) said

that nothing in clauses (1) and (2) shall apply to a person

detained under any law providing for preventive detention.

The learned Solicitor-General contended that the words "

such detention " in clause (4) were intended to refer to

preventive detention without reference to its duration as

distinguished from the other kinds of detention referred to

in clauses (1) and (2). He sought to reinforce his argument

by contending that preventive detention

for a period longer than three months was not a separate

kind of preventive detention and therefore the words " such

detention " referred to the only kind of preventive deten-

tion mentioned in the article, namely, preventive detention

simpliciter and without any reference to the period of

detention. I am again unable to agree. It is true that the

detention contemplated in the words " such detention " is

preventive detention. Clauses (4) to (7) of the article

deal with preventive detention alone and with no other kind

of detention. Therefore, in these clauses there was no

necessity of distinguishing preventive detention as such

from other kinds of detention and of using the word "such

for marking this distinction. So read the words such deten-

tion " really mean such preventive detention. The question

then arises, which preventive detention? The answer must

be, one variety of preventive detention as distinguished

from other varieties.

It is also true that preventive detention for a period

longer than three months is none the less preventive deten-

tion and is not another kind of detention. At the same time

preventive detention for a period longer than three months

is not the same thing as preventive detention for a shorter

period. It is quite conceivable that with regard to differ-

ent periods of detention permissible under a law relating to

preventive detention different provisions may be made.

Preventive detention certainly interferes with a person's

liberty. It is an inroad on his freedom. It may be that

the makers of the Constitution having given the legislatures

power to enact laws providing for preventive detention

interfering with a person's liberty did not think it fit to

provide any limitation on such power when such detention,

was to be for a relatively shorter period but thought it fit

to restrict the power in the case of detention for what they

conceived to be a long period. If such was the intention,

then the makers of the' Constitution would obviously make a

distinction between preventive detention for a shorter

period and preventive detention for a longer period. To say

that there is no distinction between these kinds of preven-

tive detention is to assume that the makers of the Constitu-

tion, never

its opinion sufficient cause existed for a detention for a

longer period or not, the report, when made, must necessari-

ly be taken to have expressed such an opinion and the arti-

cle therefore must be deemed have been complied with. This

argument, of course., assumes that the words " such deten-

tion " mean detention for a period longer than three months.

It assumes that the article requires that where the law of

preventive detention authorises a detention for a longer

period it is necessary to obtain the opinion of the Advisory

Board that there is sufficient cause for detention for such

period. Now there is nothing in the article to prevent an

Act authorising preventive detention providing for the

opinion of the Advisory Board being obtained as to there

being sufficient cause for the detention in any case of

detention. Such a provision in a law of preventive deten-

tion would be perfectly legal. The present Act in fact

contains such a provision. Therefore, it cannot be said

that whenever a law provides for an opinion of the Advisory

Board being obtained as to the sufficiency of the cause for

detention, the opinion in view of Art. 22(4)(a) necessarily

is as to the sufficiency of the cause of detention for a

period longer than three months. Besides, if, as the

present argument assumes, it is obligatory in a law autho-

rising preventive detention for a period longer than three

months to provide for a, report of the Advisory Board statin

expressly its opinion as to the sufficiency of the cause for

the detention for the period mentioned, I am unable to

appreciate that such an obligation is satisfied by not

making the required provision but by showing that by neces-

sary implication the required opinion is deemed to have been

given, even though in fact it may not have been given. The

question is not what the report is to be seemed to have

stated nor even what it has in fact stated, but what the

statute should provide. If the statute has not made the

obligatory provision it must be held to be bad. It would be

a strange argument to say that it must be good because

though it did not contain the required provision it must in

view of the Constitution be deemed to contain it,

intended to make the distinction. For such an assumption I

find no justification. Indeed, what I have read from the

judgment of this Court in Gopalan's case, would show that

the distinction between preventive detention simpliciter and

preventive detention for a period longer than three months

was in the mind of the makers of the Constitution, for it is

there said that no reference to the Advisory Board is con-

templated by the Constitution excepting in a case of deten-

tion for a period longer than three months.

The present argument of the learned Solicitor-General is on

the basis that one of the possible constructions of the

words " such detention " is detention for a period longer

than three months. That being so, and the word " such "

meaning in the ordinary English language, of the kind al-

ready described, even if two kinds of detention, namely,

preventive detention simpliciter and detention for other

reasons, have been earlier mentioned, the kind mentioned

nearest to the word "such" must be the kind intended by it.

Therefore again the words " such detention " must be taken

as referring to detention for a period longer than three

months. Indeed cl. (4) and the other clauses have nothing

to do with other kinds of detention than preventive deten-

tion. The word " such " cannot therefore seek to make a

distinction from a thing occurring in a wholly separate

provision of the article, namely, clauses (1) and (2). That

being so, I am unable to agree that the words " such deten-

tion " refer to preventive detention simpliciter.

I now turn to another question that arose. It was said that

Art. 22 (4) (a) applies only to a law which authorises

detention for more than three months; that it is such a law

alone which must provide for the opinion of the Advisory

Board being obtained. It was contended that, therefore,

whenever a law authorising preventive detention provides for

a reference to the Advisory Board, it necessarily provides

for a report as to whether there is sufficient cause for a

detention for a period longer than three months, and that

being so, no matter whether any provision had been made that

the Advisory Board must state whether in

It was then said that as it is not for the Advisory Board to

decide the period of detention to be ordered there can be no

point in providing that its opinion, whether there were

sufficient cause for detention for a period longer than

three months or not, should be obtained. It seems to me

that whether there is any point in obtaining such opinion or

not it is wholly irrelevant to enquire. If the language of

the Constitution requires such opinion to be obtained, it

has to be obtained. I have stated that the language indubi-

tably requires such opinion to be obtained. The language

cannot have a different meaning because, otherwise, the

provision would be without any point at all. Furthermore, I

am unable to see why if the Government fixes the period of

detention, it is unnecessary where the period is to exceed

three months to provide for the opinion of an independent

body being obtained as to whether there is sufficient cause

for detention for that period. In my view it is eminently

reasonable to make such a provision. When a person's liber-

ty is to be curtailed for a longer period, a safeguard may

be considered necessary which it may not be when the cur-

tailment contemplated is for a comparatively shorter period.

I will repeat that the reasonableness of such a provision is

implicit in what I have read from the judgment in Gopalan's

case (1). It is said there that it is only in the case of

detention for a period longer than three months that the

Constitution requires a provision that the Advisory Board's

opinion should be obtained. This view is clearly brought

out by Fazl Ali, J., when he said in that case at page 171:

"Prima facie, it is a serious matter to detain a person for

a long period (more than three months) without any enquiry

or trial. But article 22(4)(a) provides that such detention

may be ordered on the report of the advisory board. Since

the report must be directly connected with the object for

which it is required, the safeguard provided by the article,

viz., calling for a report from the advisory board, loses

its value, if the advisory board is not to apply its mind

(1) [1950] S.C.R. 88.

to the vital question before the Government, namely, whether

prolonged detention (detention for more than three months)

is justified or not."

I have so long discussed the question whether the words "

such detention " mean preventive detention simpliciter or

preventive detention for a period longer than three months

as a question of construction with. out reference to the

authorities. In fact, there is no conclusive authority on

the point, but some have been referred to. These I now

proceed to consider.

The first case referred to is Gopalan's case (1). That was

also a case concerned with the issue of a writ of habeas

corpus, and it turned on the very Act that is before the

Court now, as it stood in 1950. At the date the order for

detention in that case was made the Act provided that in

certain class of cases a person might be detained for a

period longer than three months without obtaining the opin-

ion of the Advisory Board in accordance with the provisions

of Art. 22(4)(a). Such a provision is sanctioned by el.

(7)(a) of that article. The order for detention made in

that case was of a kind where reference to the Advisory

Board was not obligatory. That being so, it was not neces-

sary for the court in that case to decide the precise mean-

ing of the words " such detention ". None the less, how.

ever, three of the learned judges indicated their views on

the question and the other three do not seem to have dealt

with it. Kania, C. J., expressed the opinion that the words

"such detention" meant detention beyond the period of three

months. Referring to the proviso to sub-cl. (4)(a), he

stated (p. 117):

" The proviso to this clause further enjoins that even

though the advisory board may be of the opinion that there

was sufficient cause for such detention, i.e., detention

beyond the period of three months, still the detention is

not to be permitted beyond the maximum period, if any,

prescribed by Parliament under article 22(7)(b)."

The learned Chief Justice therefore was of the view that

under Art. 22(4)(a) the Advisory Board had to be

(1) [1950] S.C.R. 88.

of the opinion that there was sufficient cause for detention

beyond the period of three months. Mr. Justice Fazl Ali

expressed himself more clearly on the subject and said (pp.

170-171):

" In connection with the first point, the question arises as

to the exact meaning of the words " such detention " occur-

ring in the end of clause (4)(a). Two alternative interpre-

tations were put forward: (1) it such detention " mans

preventive detention; (2) ".such detention" means deten-

tion for a period longer than three months. If the first

interpretation is correct then the function of the advisory

board would be to go into the merits of the case of each

person and simply report whether there was sufficient cause

for his detention. According to the other interpretation,

the function of the advisory board will to be report to the

Government whether there is sufficient cause for the person

being detained for more than three months. On the whole, I

am inclined to agree with the second interpretation.

Prima,' facie, it is a serious matter to detain a person for

a longer period (more than three months) without any enquiry

or trial. But article 22(4)(a) provides that such detention

may be ordered on the report of the advisory board. Since

the report must be directly connected with the object for

which it is required, the safeguard provided by the article,

viz., calling for a report from the advisory board, loses

its value, if the advisory board is not to apply its mind to

the vital question before the government, namely whether

prolonged detention (detention for more than three months)

is justified or not. Under article 22(4)(a), the advisory

board has to submit its report before the expiry of three

months and may therefore do so on the eighty-ninth day. It

would be somewhat farcical to provide, that after a man has

been detained for eighty-nine days, an advisory board is to

say whether his initial detention was justified. On the

other hand, the determination of the question whether pro-

longed detention (detention for more than three months) is

justified must necessarily involve the determination of the

question whether the detention was justified at all, an such

an interpretation only

can give real meaning and effectiveness to the provision.

The provision being in the nature of a protection or safe-

guard, I must naturally lean towards the interpretation

which is favourable to the subject and which is also in

accord with the object in view."

Patanjali Sastri, J., preferred the other view but he rea-

lised that the view taken by Fazl Ali, J., was also a possi-

ble view. He expressed himself in these words on the sub-

ject (at page 210):

"I am inclined to think that the words "such detention" in

sub-clause (a) refer back to the preventive detention men-

tioned in clause (4) and not to detention for a longer

period than three months. An advisory board, composed as it

has to be of Judges or lawyers-, would hardly be in a posi-

tion to judge how long a person under preventive detention,

say, for reasons connected with defence, should be detained.

That must be a matter for the executive authorities, the

Department of Defence, to determine, as they alone are

responsible for the defence of the country and have the

necessary data for taking a decision on the point. All that

an advisory board can reasonably be asked to do, as a safe-

guard against the misuse of the power, is to judge whether

the detention is justified and not arbitrary or mala fide.

The fact that the advisory board is required to make its

report before the expiry of three months and so could submit

it only a day or two earlier cannot legitimately lead to an

inference that the board was solely concerned with the issue

whether or not the detention should continue beyond that

period. Before any such tribunal could send in its report a

reasonable time must elapse, as the grounds have to be

communicated to the persons detained, he has to make his

representation to the detaining authority which has got to

be placed before the board through the appropriate depart-

mental channel. Each of these steps may, in the course of

official routine, take some time, and three months' period

might well have been thought a reasonable period to allow

before the board could be required to submit its report,

Assuming, however, that the words "such detention" had

reference to the period of detention, there is no apparent

reason for confining the enquiry by the advisory board to

the sole issue of duration beyond three months without

reference to the question as to whether the detention was

justified or not. Indeed, it is difficult to conceive how a

tribunal could fairly judge whether a person should be

detained for more than three months without at the same time

considering whether there was sufficient cause for the

detention at all. I am of opinion that the advisory board

referred to in clause (4) is the machinery devised by the

Constitution for reviewing orders for preventive detention

in certain cases on a consideration of the representations

made by the persons detained. This is the view on which

Parliament has proceeded in enacting the impugned Act as

will be seen from sections 9 and 10 thereof, and I think it

is the correct view. It follows that the petitioner cannot

claim to have his case judged by any other impartial tribu-

nal by virtue of article 21 or otherwise."

For the reasons earlier stated I prefer to accept the view

expressed by Mr. Justice Fazl Ali.

The next case referred to is Makhan Singh Tarsikka v. The

State of Punjab (1). This was also a case for the issue of

a writ of habeas corpus for the release of a person detained

under the same Act as it stood in July 1951. In this case

the first order for detention, that is to say the order made

before the reference to the Advisory Board itself fixed the

period of detention. It was held that that was illegal

because the Act made it plain that it is only after the

Advisory Board to which the case has been referred reports

that the detention is justified, the Government should

determine what the period of detention should be and not

before. The fixing of the period of detention in the ini-

tial order in, the present case was, therefore, contrary to

the scheme of the Act and cannot be supported. On this

ground the petition for the issue of a writ was allowed.

This case was obviously not

(1) [1952] S.C.R. 368.

concerned with Art. 22(4)(a) and does not in any manner

decide the question before me. I am, therefore, unable to

find any assistance from it.

Lastly, reference was made to Dattatreya Moreshwar Pangarkar

v. The State of Bombay(1). That again was concerned with an

application for the issue of a writ of habeas corpus and

also turned on the present Preventive Detention Act. There,

after the initial order for detention which did not mention

any period, the case had been referred to the Advisory Board

which reported that there was sufficient cause for detention

and then the Government issued an order stating that it

confirmed the detention order issued against the detenu.

The question was whether this confirmatory order was in

terms of s. II (1)(a) of the same Act as in this case as it

stood in 1952. That section provided that where the adviso-

ry board had reported that there was sufficient cause for

detention, the Government might continue the detention for

such period as it .thought fit. It was contended that the

section required the period of detention to be mentioned in

the confirmatory order and as the confirmatory order did not

specify the period it was bad and did not justify the deten-

tion. It was held that such omission did not invalidate the

order. Again it will be seen that this case was not con-

cerned with Art. 22(4)(a). We were referred to certain

observations of Mr. Justice Mukherjea in this case in sup-

port of the proposition that the words " such detention " in

Art. 22(4)(a) meant detention simpliciter. These observa-

tions are set out below (pp. 626-27):

" It is now settled by a pronouncement of this court that

not only it is not necessary for the detaining authority to

mention the period of detention when passing the original

order under section 3(1) of the Preventive Detention Act,

but that the' order would be bad and illegal if any period

is specified, as it might prejudice the case of the detenu

when it goes up for consideration before the Advisory Board.

The Advisory Board again has got to express its opinion

(1) (1952] S.C.R. 612.

only on the point as to whether there is sufficient cause

for detention of the person concerned. It is neither called

upon nor is it competent to say anything regarding the

period for which such person should be detained. Once the

Advisory Board expresses its view that there is sufficient

cause for detention at the date when it makes its report,

what action is to be taken subsequently is left entirely to

the appropriate Government and it can under section 11(1) of

the Act confirm the detention order and continue the deten-

tion of the person concerned for such period as it thinks

fit."

It was sought to be argued that Mukherjea, J., intended to

say that all that the Advisory Board was required to do was

to express its opinion on the question of justification of

the detention simpliciter. This may be so, but Mr. Justice

Mukherjea was construing the Preventive Detention Act which

admittedly made that provision. He was not saying that Art.

22(4)(a) also said the same thing. Indeed what I have read

earlier from his judgment in Gopalan's case (1) would show

that his view about Art. 22(4)(a) was otherwise. Again the

learned Judge was not concerned with the question whether

the relevant provision of the Preventive Detention Act was

ultra vires the Constitution. Furthermore, for the reasons

earlier stated, the fact that the Government decides the

term of detention does not indicate that it is not intended

that when detention for a period longer than three months is

contemplated, it is not necessary to obtain the opinion of

the Advisory Board as to whether there was sufficient cause

for detention for the period. Reference was also made to

the following portion of the judgment of Mahajan, J. (2),

occurring at p. 637 of the report:

"Under the Constitution, the detention of a person under any

law providing for preventive detention cannot be for a

period of more than three months unless the Advisory Board

is of the opinion that there is sufficient cause for the

detention of the person concerned."

(1) [1950] S.C.R. 88,

(2) [1952] S.C.R. 612.

It was suggested that the learned Judge indicated that all

that was necessary was for the law to provide for an opinion

of the Advisory Board as to the justification of the deten-

tion itself irrespective of whether it was to be for a

period longer than three months. It is clear that here

Mahajan, J., was not considering the meaning of the words "

such detention". He was not concerned with deciding whether

these words meant detention simpliciter or detention for a

period longer than three months. His observations in

Gopalan's case(1) that I have earlier set out, would in my

view indicate that the Advisory Board is required to give an

opinion as to whether detention for a longer period than

three months is justified or not. It cannot therefore be

said that Mahajan, J., held the view that the words " such

detention " in Art. 22(4)(a) mean simply preventive deten-

tion.

I therefore come to the conclusion that there is nothing

either in Makhan Singh's case (2) or Dattatreya Moreshwar

Paugarkar's case (3) which takes a view contrary to that

which I have taken.,

In the result I would allow the appeal.

(1) [195o] S.C.R. 88.

(3) [1952] S.C.R. 612

(2) [1952] S.C.R. 368.