ABDUL KARIM AND OTHERS versus STATE OF WEST BENGAL

ABDUL KARIM AND OTHERS

STATE OF WEST BENGAL

January 31, 1969

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)

Preventive Detention Act IV of 1950 Ss. 3(2), 8, 9, 10 &o 11(1)-Com. titution of India, Art. 22 (5)-I/ State Government under an obligation to consider representation of detenu before forwarding to Advisory Board.

The petitioners were detained by orders of detention under s. 3 (2) of tho Preventive Detention Act IV of 1950. After the grounds of detention were communicated to them, they made representations to the State Gov-ernment agaiust their detention. These were considered by the Advisory Board which reported under section 10 of the Act that there was sufficient cause for detention in each case and the State confirmed the detention& under s. 11 (1) di the Acl By petitions under Article 32 of the Constitu-tion, the petitioners challenged the legality of their detention on the ground that the representations made hy them against their orders of de-tention were not considered by the respondent Government, but were merely forwarded hy it to the Advisory Board. It was contended on behalf of the. State Government that there was no obligation on it to consider the representations since an Advisory Board had been constituted under Section 8 of the Act to consider the cases of. the detenus and had reported that there was sufficient cause for their deten-tion; and that there was no exp·ress language in Article 22 (5) of the Coll8-titution requiring the State Government to consider the representations o'i the detenus. An alternative contention was that the State Government might be obliged to consider the representat,ion of detenu only in case • where the detention was for period o! less than three months ar in case contemplated by Article 22 (7).

HELD: The orders of detention against the petitioners were illegal and ultra vires.

It is necessarily implicit in the language of Art.. 22 (5) that the State Government to whom the representation is made should praperly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the Stale Government from the le~al obligation .to consider the representation of the detenu as soon as it ts received by it, and to take appropriate action thereon including revocation di the order which it was empowered to do under section 13 of the Act. [ 486 Hl

It is manifest that the right under Art. 22 (5) to make representa-tion has been guaranteed independent o! the duration of the period o! detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory. Board for the purpose di report-ing whether person should or should not be detained for period of more than three months is very different thing from right i>f considera-tion by the State Government whether person should be detained even for single day. Even if reference has to be made to the Advisory Board under section 9 of the Act, the appropriate Government is, under legal obligation, to consider the representation of the detenu before ruch reference is made. [488 DJ

All the procedural requirements of Article 22 a:re mandatory in charac-ter and even if one of the procedural requirements is not complied with · the order of detention would be rendered illegal. [489 Al '

ORIGINAL JURISDICTION : Writ Petition No. 327 of 1968.

Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpus.

R. K. Garg, for the petitioneni.

Debabrata Mukherjee, P. K. Chakravarti and G. S. Chatter-jee, for the respondent.

'The Judgment of the Court was delivered by

Ramaswami, J. In this case the petitioners have obtained rule ~g upon the respondent, viz., the State of West Bengal, to show cause why writ of habeas corpus should not be issued under Art. 3 2 of the Comtitution directing their release from detention under orders passed under s. 3 ( 2) of the Preventive Detention Act, 1950 (Act IV of 1950) (hereinafter called the Act). Cause has been shown by Mr. Debabrata Mukherjee and other coun$eJ on behalf of the respondent to whom notice of the rule was ordered to be given.

At the conclusion of the hearing of this petition on 15th Janu-ary, 1969, we directed the release of these petitioners and said that the reasons would be furnished later. We shall now proceed to state those reasons.

As regards petitioner No. 2 Sk. Abdul Karim, the order of detention was made on 17th February, 1968 by tl\.e District Ma, gistrate of Hooghly and reads as follows :

"No. 230..C Dated 17-2-1968

Whereas I am satisfied with respect to the person known as Sk. Abdul Karim, son of late Sk. Nasiruddin of Mathurdangi, Police-station Chanditala District Hooghly, that with view to preventing him from acting in any · ma!llller prejudicial to the maintenance of supplies and services essential to the eo!Oll).unity, it is necessary so to do, I therefore in exercise of the powers conferred by section 3 ( 2) of the Preventive Detention Act; 19 50 make this order directing that the said Sk. Abdul Karim be detained.

Given under my hand and seal of office.

Sd/ - Illegible . . 17-2-68 District Magistrate, Hoogb!y".

On the same date the foilowing grounds of detention were com-municated to the detenu :

"I. You are being detained in pursuance of deten-tion order made under sub-section ( 2) of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950), on the following groUlllds :

2. That on 2-2-68 at 19.05 hours you were arrested while carrying 60 kgs. of rice without authority from Dankuni Bazar towards Dankuni Rly. Station with view to despatch the same by train into the statutory rationing areas of Calcutta and Howrah.

{a) That on 9-2-68 at 14.00 hrs. you were found to detrain at Dankuni Rly. Station with bag containing one maund of rice from Burdwan-Howrah local train.

(b) That on 10-2-68 at 13.55 hrs. you with 2/'3-other smugglers were found to carry rice 20 kgs. e.ach, by train from Dankuni Rly. Station towards Sealdah and you all detrained at Baranagore off side platform with unauthorised stocks of rice.

(c) That on 11-2-68 at 08.45 hrs, you with other

smugglers were found c~g 15 kgs. of rice each by train towards Howrah from Danlruni Rly. Station.

3. You are hereby informed that you may make representation to the State Government, as early as possible, on receipt of the detention order and that such representation should be addressed to the Asstt. Secy. to the Govt. of West Bfl!lgal, Home Deptt. Special Section, Writers' Buildings, Calcutta, and forwarded through the Superintendent of the Jail in which you are detained.

4. You are also informed that under section 10 of the Preventive Detention Act, 1950 (Act IV of 1950), the Advisory Board · shall hear you in person and if you desile to be so heard by the Advisory Board, you should mtimate such desire in your representation to the State Government.

Sd/- Illegible

17-2-68

District Magistrate, Hooghly".

On 21st February, 1968, Sk. Abdul Karim made representation to the State Government against the order of detention.

On 22nd April, 1968, the Advisory Board made report under section 10 of the Act stating that there was sufficient cause for detention of Sk. Abdul Karim. On 24th July, 1968, the Governor of West.Bengal confirmed the detention order under section 11(1) / of the Act.

Section 3 of the Act provides :

«3. (1) The Central Government or the State Gov-

ernment may-

( a) If satisfied with respect to any person that with view to preventing him from acting in any manner prejudicial to-

(i) the defence of India, the relatlons of India with foreign powers or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essen-tial to the community, or

(b) if satisfied with respect to any person who is

foreigner within the meaning of the Forejgners Act, 1946 (XXXI of 1946), that with view to regulating his continued presence in India or with view to making arrangements for his expulsion from India, it is neces-sary so to do, make an order directing that such person be detained.

( 4) When any order is made or approved by the State Government under this section, the State Govem!-ment shall, as soon as may be, report the fact to the Central Government together with the grqunds on which the order has been made and such other particulars as in the opinion of the State Government having bearing on the necessity for the order".

Sub-sections (2) and (3) of this section empower the District Magistrate, Sub-Divisional Magistrate or the Commissioner of Police in Presidency Town to exercise the power conferred by and make the order contemplated in sub-section ( 1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion hav.e bear-ing on the necessity for the order. Sub-section ( 3) further pfl'" vides that no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Govern-ment. Section 7 of the Act reads :

"7. ( 1 ) When person is detained in pursuance of detention order, the authority making the order shall,

as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of. making representation against the order to the appropriate Governmem:t.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose".

Section 8 provides for constitution of one or more Advisory Boards for the purposes of this Act. Sectfop 9 states :

"In every case where detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board constituted by it under section 8 the grounds on which the order has beein made and the representation, if any, made by the person affected by the order, and in case where the order has v been made by an officer, also the report by such officer, under sub-section (3) of section 3".

Section 11 ~cts :

. "11. (I ) In any case where the AdVJSOry Board has reported that there is in its opinion sufficient cause for the detention of person, the appropriate Government may confirm the detention order and CO(!ltinue the deten-tion 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 det~tion of the person concerned, the appro-priate Government shall revoke the detention order and cause the person to be released forthwith".

Section llA states :

"11 A. ( 1) The maximum period for which any per-son may be detained in pursuance of any detention order which has been confirmed under section 11 shall be twelve months from the date of detention.

( 2) Notwithstanding anything contained in sub-section ( 1) every detention order which has been con-firmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall unless shorter period is specified in the order, continue to remain in force untll the 1st day of April, 1953, or until the expiration of twelve months

[1969] 3 S.C.R.

from the date of dete.ntion, whichever period of deten-tion expires later.

(2) shall have

(3) The provisions of sub-section (2) shall have effect notwithstanding anything to the contrary contained in section 3 of the Preventive Detention ( Ameaidment) Act, 1952 (XXXIV of 1952), but nothing contained in this section shall affect the power of the appropriate Governmtl!lt to revoke or modify the detention order at any earlier time."

Section 13 provides for revocation of detention order and reads as follows :-

" 13. ( 1) Without prejudice to the provisions of sec-tion 21 of the General Clauses Act, 1897 (X of 1897) detention order may at any time be revoked or modified-

( a) notwithstanding that the order has been made by an officer mentioned in the sub-section ( 2) of sec-tion 3, by the State Government to which that officer is subordinate or by the Central Government; and (b) notwithstanding that the order has been made by State Government or by the Central Government.

(2) The revocation or expiry of detention order shall not bar . the making of fresh detentio.ri order under section 3 against the same person in any case where fresh facts have arisen after the date of revoca-tion or expiry on which the Central Government or State Government or an officer, as the case may be, is satisfied that such an order should be made".

The Preventive Detention Act (Act No. 4 of 1950) was en-acted by Parliament by virtue of the power conferred on it by Art. 22 clause (7) of the Constitution read with entries 9 of List I and 3 of List III of the Seventh Schedule. Article 22 ( 4), ( 5), ( 6) and ( 7) provides as follows :

( 4) No law providing for preventive detention shall authorise the detention of person for longer period than three months unless--

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be e.ppointed as Judges of High Court has reported before the expi-ration of the said period of three months that there is in its opinion sufficient cause for sl'ch detention :

Provided that nothing in this sub-clause shall autho-rise 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 ~ 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, communicate to such person the grounds on which the order has been made wd shall afford him the earliest opportunity of making 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 ~er which, and the class or classes of cases in which, person may be detained for period longer than three months under any law providing for preventive detention without obtaining the opinioin of the 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 for preventive detention; and

( c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) ol clause ( 4) ".

It was argued by Mr. Garg that the representations of the· petitioners were not considered by the respondent Government of West Bengal; but were merely forwarded by the respondent to the Advisory Board without any consideratiQII. It was contended that the detention of the petitioners was bad in Jaw, because there was failure on the part of the Government to consider the repre-sentations submitted by the petitioners before forwarding them to the Advisory Board. In the first counter-affidavit of the respon-dent it was asserted by Mr. Monoranjan Dey that "there was no requirement of law which compelled the consideration by the State Government ol the deteirlu's representation before being forwarded to the Advisory Board for consideration". In the second counter. affidavit Mr. Monoranjan Dey said that "for securing ~n unpre-judiced and impartial consideration of the represqntatton of the

petitioner by an independent Statutory Authority, the State Gov-ernment refrained at that stage from expressing its views on the .representations to the Advisory Board". The counter-lffi.davits of the respqn.dent are somewhat vague and the allegation of the peti-tioner has not been categorically denied. Mr. Debabrata Mulilier-jee, however, said in the course of argwnent that the case may be decided on the footing that the representations were not considered by the State Government before sending them to the. Advisory Board. It was cqntended on behalf oi the respondent that there was no obligation on the State Government to consider the repre-sentations since the Advisory Board had been constituted under section 8 of the Act to consider the case of the de~'us and to report to the State Govelllll1lent whether there was sufficient cause for their .detention. The question involved in this case depends upon the construction of Art. 22 ( 5) of the Constitution which has already been reproduced.Though the Constitution has recognised the necessity of law~ as to prevfl!ltive detention, it has also provided certain safeguards to mitigate their harshness by placing fetters on the legislative power conferred on this topic. Article 22 lays down the pennis-sible limits of legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting prevf1!ltive detention and if such requirements are not observed the detention iniringes the fundamental right of the detenu guaranteed under Articles 21 and 22 of the Constitu-tion. The said requirements are : ( 1 ) that !!10 law can provide for detention for period of more than three months unless the sufficiency for the cause of the detention is investigated by an Advisory Board within the said period of three months; (2) that the State law cannot authorise detention beyond the maximum period prescribed by Parliament under the powers given to it in Art. 22 clause (7); (3) that Parliament also cannot make law authorising detention for period beyond three months without the intervention of an Advisory Board unless the law conforms to the conditions laid down in clause ( 7) of Art. 22; ( 4) provision has also been made to enable Parliament to prescribe the procedure to be followed by Advisory Boards. Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause ( 5) of Art. 22. person detained under law of preventive detention has right to obtain information as to the grounds of detention and has also the right to make represein-tation protesting against an order of preventive detention. Article 22 ( 5) does not expressly say to whom the representatlon is to be made and how the detainmg authority is to deal with the represen-tation. But it is necessarily implicit in the language ofArt. 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as

possible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express Iainguage in Art. 22 ( 5) requiring the State Government to consider the representation of the detenu. But it is necessary implication of the language of Art. 22 ( 5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right !~make representation guaranteed by Art. 22(5) must be taken to include by necessary implication the constitutional right to proper consideration of the representation by the authority to whom it is made. The right of representation under Art. 22 ( 5) is valuable constitutional right and is· not mere formality. It is, therefore, not possible to accept the argument of the respon-dent that the State Government is not under legal obligation to consider the representation of the detenu or that the representa-tion must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for by the respondent is correct, the constitutional right under Art. 22 ( 5) would be ren-dered iJlusory. Take for instance case of detention of person on account of mistaken identity. If the order cf detention has been made against and different person is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Govern-ment should wait for the report of the Advisory Board before re-leasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Aclvisory Board, the State Government has ample power under ~ectiOn 13 of the Act to re-yoke nny ord~r of detention at any time. If the right of represen-F tation in such case is to be real and not illusory, there is legal obligation imposed upon the State Government to consider the re-presentation and to take appropriate action thereon. Otherwise the right of representation conferred by Art. 22 ( 5) of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the construction of Art. 22 ( 5) cannot a.!so be correct for another reason. Under Art. 22 clause ( 4) of the Constitution, it is open to Parliament to make law providing for preventive detention for period of Jess than three months with-out the cause of detention being investigated by an Advisory Board. It is clear that the right of representation conferred by clause ( 5) of Art. 22 does not depend upon the duration of period nf detention. Even if the period of detention is less than three ff months, the detenu has constitutional right of representation. It is also important to notice that under Art. 22(7) Parliament may by law prescribe the circumstances under which and the class

or classes of cases in which person may be detained for period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes law contem-plated by Art. 22(7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Art. 22(5).

Faced with this difficulty counsel on behalf of the respondent conceded that in case where the detention is for period of Jess than three months or in case CQllltemplated Qy Art. 22(7), the State Government will be legally obliged to con-sider the representation of the detenu. But it was suggested that in case where reference has to be made to the Advisory Board it was not necessary for the State Government to consider the repres~ation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Art. 22 ( 5) of the Constitution and there is no reason why it must be interpreted in different manner for the two classes of detenus. It is manifest that the right under Art. 22 ( 5) to make representatiOl!l has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether person should or should not be detained for period of more than three j!}flnths is very different thing from right of consideration by ilie State Government whether person should be detained even for sjngle day. The obliga-tion of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the referooce. It follows, therefore, that even if reference is to be made to the Advisory Board under section 9 of the Act, the appropriate Gov-ernment is under legal obligation to consider the representation of the detenu before such reference is made.

In the present case, Sk. Abdul Karim has alleged that his re-presentation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counter-affidavit filed on behalf of the respon-c!Qnt. What is at stake in this case is the issue of personal free-dom which is one of the basic principles of democratic State. predominant position and role is given in our Constituti9n to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive det~ntion is serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. Al! the procedural require-ments of Article 22 are in our opinion maindatory in character and

even if one of the procedural requirement is not complied with, the order of detention would be rendered illegal. Accordingly, the order of detention dated 17-2-1968 made a11ainst petitioner No. 2, Sk. Abdul Karim aod the subsequent order of the Gover· nor of West Bengal dated 24th April, 1968 confirming the order Of detention must be held to be illegal and u/Jra vires and peti· tioner No. 2 Sk, Abdul Karim was entitled to be released.

In the case of petitioners Nos. 5, Nirmal Chandra Jana, No. 6 SL Ibrahim and No. 8 Nur Mohd. the order of detentioo sullers . from the same legal defect as the order of detention in the case of petitioner No. 2, Sk. Abdul Karim. For the reasons already stated we hold that the order of detention and the order of con-e firmation under section 11 of the Act in the case of petitioners Nos. 5, 6 ~ 8 were also illegal and ultra vi res and the petitioners were consequently entitled to be released

R.K.P.S.

Petition allowed.