JAGANNATH MISRA versus STATE OF ORISSA

JAGANNA1H MISRA

STATE OF ORISSA December 17, 1965 [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIOAYATULLAII, V. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.)

1962. Ruk 30(1)(b)--Ordtr

Dtftnce of India Act and Rule.r, 1962. Ruk 30(1)(b)--Ordtr urukr-Grounds of detention-Application of mind by detaining autho-riry-Ntcessiry of-.

The petitioner was deta:ned by an order issued under r. 30(l)(b) of the Defence of India Rules. He challenged the detention order in petition under An. 32 of the Coiutitution mainly on the ground that the order enumerated six oMt of eight possible grounds of detention wh'ch showed that the detaining authority had not really applied its mind to the matter. The affidavit filed by the Home Minister staled that the de-tention order was made on his personal satisfaction that it was necessary to detain the petitioner under the Rules "with view to prevent him from acting in manner prejudicial ID the safety of India and maintenanee of public order etc." HELD: (i) The order of detention under r. 30(1) (b) of the R~ deprives citiun of this country of his personal liberty and in view of the mspension of some of the fundamental rights by the President on account of the emergency, citizen has very limited opportunity of challonging an order of detention properly passed under !he Rules. Section 44 of the Defence of India Act says that there should be as little interference with the ordinary avocations of life and the enjoyment of propeny as may be consonant with the ensuring of the publ'c safety and interest and the Defence of India and Civil Defence. If in ony case it appears that the detaining authority did not apply its mind pro-perly before making the order of detention the order in question would not be an order under the Rules and the per,;on detained would be entiU-ed to release. [137 F-138 CJ (ii) Of the eight grounds of detention in s. 3(2) (15) of the Defence of India Ao: one refers 10 foreigners 1.e. of being of hostile origin. An Indian Citizen can thus be detained on seven po;sible grounds and the detention order in the present case mentioned six of them. However in the affidavit filed by the Minister only two of these ground• namely safety of India and the maintenance of publ;e order "ere mentioned. In these circumstances there could be little doubt that the authority con-cerned did not apply its mind properly before the order in Question waa passed in the present case. Such discrep:!ncy between the grounds mentioned in the order and the grounds staled in the affidavit of the authority concerned can only show an amount of ca~ualn~ in oassinsi: the order of detention against the provisions of s. 44 of the Act. [IJB D-Hl

Casualn~ was '3.lso apparent from the conjunctive ·or' u!\ed in the order showin~ that it was more or less copv of s. 3(2)(15). The u"' of the word 'etc.' in the affidavit was another exampte of casual~. This casualness showed that the mind of the authority concerned was really not applied to the question of detention of the petitioner. The order of

.JAGANNATH v. ORISSA (Wanchoo, J.)

detention passed without application of mind was no order under tho Rules and the petitioners was entitled to release. [139 Cl

(iii) The fact that the order of detention was not written by the Minister himself but by his subordinates was irrelevant. It is the duty of the Minister to see that the order issued is in accordance with his satisfaction and carries out his directions. [139 GI

ORIGINAL JURISDICTION : Writ Petition No. 97 of 1965.

Petition under Art. 32 of the Constitution of India for the enforcement ot fundamental rights.

R. K. Garg for the petitioner.

N. S. Bindra and R. N. Sachthey for the respondent.

The Judgment of the Court was delivered by

Wanchoo, J. This petition for writ of habeas corpus under Art. 32 of the Constitution was heard by us on December 7, 1965. We then directed the release of the petitioner and indica-ted that reasons wlll follow later. We proceed to do so now.

The petitioner was detained by an order issued under r. 30· ( 1) (b) of the Defence of India Rules (hereinafter referred to. as the Rules) by the Government of Orissa on December 29, 1964. He raised number of grounds challenging his detention. It is unnecessary to refer to all the grounds raised by the petitioner. It is enough to say that one of the grounds raised by him was that the order of detention passed by the State Government was not based upon the satisfaction of the Government. The order was in these terms :-

"Order No. 8583/C, Bhubaneswar, the 29th December, 1964.

"WHEREAS the State Government is satisfied that with view to preventing Shri Jagannath Misra, son of Biswanath Misra, viii. Bhandarisahi, P. S. Parla-kemedi, District Ganjam, from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations, it is necessary so to do, the Governor of Orissa in exercise of the powers conferred by rule 30(1) (b) of the Defence of India Rules, 1962, is pleased to direct that the said

SUPllEMB COUllT REPORTS (1966) 3 S.C.R.

Shri Jagannath Misra shall be detain.ed until further orders.

By order of the Governor, Sd. Secretary to Government."

It will be noticed that the order mentions six grounds on the .basis of which the petitioner was ordered to be detained, namely, . acting in any manner prejudicial to (i) the defence of India and .civil defence, (ii) the public safety, (iii) the maintenance of public order, (iv) India's relations with foreign powers, (v) the .maintenance of peaceful conditions in any part of India, and (vi) the efficient conduct of military operations. As the petitioner had raised the contention that the order had not been passed on the satisfaction of the State Government we ordered the Minister .concerned to file an affidavit in this behalf. Consequently, the Home Minister of the Government of Orissa who deals with matters of detention, has filed an affidavit to show that the order in question was passed .ifter the State Government wa~ satisfied . of the necessity thereof.It is stated in this affidavit that the petitioner was ordered to be detained on December 29, 1964, by the order in question and was actually detained on December 30, 1964. The affidavit then goes on to say that after the outbreak of hostilities between ·China and India and the declaration of emergency by the Presi-dent close watch was set on the movements and activities of persons who either individually or as part of an organisation were acting or were likely to act in manner prejudicial to the safety of India and maintenance of public order, and in this con-nection particular attention was paid to the activities of the members of that section of the Communist Party which came to be known as the pro-Peking faction of the Party. The petitioner was member of the pro-Peking faction and was under close and constant watch. From the reports received regarding the activi-ties of the petitioner the Home Minister stated iii the affidav:t that he was personally satisfied that it was necessary to detain the petitioner under the Rules "with view to prevent him from acting in manner prejudicial to the safety of India and main-tenance of public order, etc." The affidavit goes on to say that the decision to detain the petitioner was made on the personal satisfaction of the Minister and that the satisfaction was based on several reports placed before the Minister with respect to the activities of the petitioner.

The principal contention on behalf of the petitioner in relation to and against the affidavit of the Home Minister is that it is clear from perusal of the affidavit that the Minister did not apply his mind in the matter of the detention of the petitioner. It is urged that the order in question contains six grounds of detention. These six grounds practicaJ.ly cover all the ground& specified ins. 3(2) (15) of the Defence of India Act (hereinafter referred to as the Act) except two, namely-(i) the security of the State and (ii) of being of hostile origin. It is therefore urged that the order was made copying out practically all the grounds specified ins. 3(2)(15) of the Act without the applica-tion of the mind of the Minister whether those grounds were made out in this case. Reliance in this connection is placed on the affidavit of the Home Minister where he has stated that he was personally satisfied that it was necessary to detain the petitioner in order to prevent him from acting in manner prejudicial to the safety of India and maintenance of public order, etc. It is urged that the affidavit shows that the Minister did not really apply y his mind to the question of the detention of the petitioner and the grounds for doing so and acted in casual manner in approv-ing the detention of the petitioner. It is urged that while the grounds specified in the order are six in number, the Minister when speaking of his satisfaction has mentioned only two, namely, safety of India (which may be assumed to be the same as the-public safety) and maintenance of public sector.

There is in our opinion force in this contention on behalf of the petitioner. The order of detention under r. 30(l)(b) of the Rules deprives citizen of this country of hfa personal liberty and in view of the suspension of some of the fundamental rights by the President on account of the emergency, citizen has very limited opportunity of challenging an order of detention properly passed under the Rules. It seems to us therefore necessary-where detention is made under the Rules that the authority order-ing detention should act with full sense of responsibility keeping in mind on the one hand the interests of the country in the prerent emergency and on the other hand the importance of the liberty of the citizen in democratic society. That this is so is also empha-sised by s. 44 of the Act which Jays down that "any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence." In _ view of this specific provision in the Act it is incumbent upon: L9Sup. CI/66-10

the auchorily which is passing an order under r. 30 (I ) ( b) of the Rules taking away the liberty of citizen of this country that it should act with due care and caution and sec that the person detained is ,,o detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of detention should show that it had acted with all due care and caution and with the seme of respon-sibility necessary when citi7.en is deprived of his liberty without trial. We have therefore co see whether in the present case the authority concerned has acted in this manner or noc. If ic has not so acted and if it appears that it did not apply its mind properly before making the order of detention the order in question would not be an order under the Rules and the person detained would be entitled to release.

Now we have pointed out that the order of detention in chis case refers to six out of eight possible grounds on which person ,can be detained under s. 3(2) ( 15). Of these eight grounds \mder s. 3 (2) ( 15) one refers to foreigners i.e., of being of hostile origin. Therefore in the present case the order really mentions six out of seven possible grounds which can apply to an Indian whose detention is ordered under s. 3 ( 2) ( 15). We do not "'Y that it is not possible to detain citizen on six out of seven pos-sible grounds under s. 3 (2) (15); but if that is done it is necessary that the authority detaining citizen should be satisfied about each one of the grounds that the detention is necessary thereon. But if it appears that though the order of detention mentions large number of grounds the authority concerned did not apply its mind to all those grounds before passing the order, there can in our opinion be no doubt in such case that the order was passed without applying the mind of the authority concerned to the real necessity of detention. In the present case as we have already pointed out six grounds out of possible seven grounds on which citizen can be detaineu have been memioned in the order; hue in the aflidavit of the Minister we find mention of only two of those grounds, namely, safety of India (which may be a<;Sumed to be the same as public safety) and the maintenance of public order. In these circumstances there can be little doubt that the authority concerned did not apply its mind properly before the order in question was passed in the present case. Such dis-crepancy between the grounds mentioned in the order and the grounds stated in the affidavit of the authority concerned can only show an amount of casualness in passing the. order of deten-tion against the provisions of s. 44 of the Act. This casualness

also shows that the mind of the authority concerned was really not applied to the question of detention of the petitioner in the present case. In this view of the matter we are of opinion that the petitioner is entitled to release as the order by which he was detained is no order under the Rules for i_t was passed without the application of the mind of the authority concerned.

There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where number of grounds are the basis of deten-tion order, we would expect the various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or"' in such case makes no sense. In the present order however we find that the disjunctive "or" has been used, showing that the order is more or less copy of s. 3 (2) ( 15) without any application of the mind of the authority concerned to the grounds which apply in the present case.

Learned counsel for the State however relies on the word "etc." appearing in the affidavit. His contention is that as the order of detention had already been mentioned in an earlier part of the affidavit of the Home Minister, the word "etc." used in the later part of the affidavit means that though the affidavit was only mentioning two grounds, namely, the safety of India and the maintenance of public order, it really referred to all the grounds mentioned in the order. We are not prepared to accept this. If anything, the use of the words "etc." in the affidavit is another example of casualness.

It was also urged on behalf of the State that the order in question was not actually written out by the Minister and that after the satisfaction of the Minister such orders are prepared by his subordinates in the Secretariat and that therefore the Minister was not responsible for the discrepancy between the order and the affidavit. We are not prepared to accept this explanation, for it is the duty of the Minister to see that the order is issued in accordance with his satisfaction and carries out his directions. Though the Minister may not write out the order himself he is as much responsible for it as if he had done so himself, for no order of detention can be passed without the satisfaction of the autho-rity empowered under the Act and the Rules. The authority cannot take refuge in saying that it was really satisfied about, say, «me ground but the person who later on wrote out the order of detention added many more grounds which the authority never had in mind. It is the duty of the authority to see that the order

of detention is in accordance with what the authority was satisfied about. If it is not so, the inference of casualness is strengthened and the Court would be justified in coming to the conclusion that the order was passed without the application of the mind of the authority concerned.

Petirion allowed.