MOHAMMAD YOUSUF RATHER v. THE STATE OF JAMMU & KASHMIR AND ORS (2)

Citation: [1980] 1 S.C.R. 258

Court: Supreme Court of India

Bench: R.S. SARKARIA, P.N. SHINGAL, O. CHINNAPPA REDDY

Case summary

The petitioner challenged his detention under the Jammu & Kashmir Public Safety Act, 1978. Atma Ram Sridhar Vaidya(') where the guarantee of article 22(5) has been characterised as an elementary right of a citizen in a free democratic state, and it has been held that if a...

Judgment text

MOHAMMAD YOUSUF RATHER ' v. r THE STATE OF JAMMU & KASHMIR AND ORS. August 10, 1979 8 [R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ. ] I Jarnnzu & Ka. . YOUSUF v. . T. & K. (Shi11g/wl J. ) 261 tioncr has been informed that he may make a representation to the • ·Government against the order of detention if he so desires. We shall refer to the •annexure in a while, but it may be sta. ted here that tbe counsel for the respondents has not found it possible to contend that no part thereof is vague. He has however tried to argue that the r . annexure contains a preamble as well as the grounds of detention, and that the vagueness of the preamble could not possibly justify the argu- I ment that the grounds of detention arc also vague. Learned counsel has tried to support his argument by reference to the decision of tbis Court in Naresh Chandra Ganguli v.

State of West Bengal and not been stated that the poster instigated, incited, provoked or otherwise abetted the use of force so as to amount to acting in any manner prejudicial to the maintenance of public order. As has been stated, a revolution can be brought about by peaceful and lawful means, and askrng tho people to prepare themselves for it cannot be a ground of detention U:nder section 8. We have made a reference to paragraph 5 of the grounds of detention, which states that the petitioner was noticed instigating the educated unemployed youth who had gone on hunger strike at Anantnag, to show the vagueness of that ground. It may further be stated that it is , quite an irrelevant ground also, because any such instigation could not be said to fall within the purview of clause (b) of sub-section (3) of sec'! ion 8. MOHD. YOUSUF v. J, & K. (Chinnappa Reddy, !.

) 267 It is well settled that a ground is said to be irrelevant when it has • no connection with the satisfaction of the authority making the order of detention under the appropriate law. It nevertheless appears that the aforesaid irrelevant grounds were take'n into consideration for making the impugned order, and that is quite sufficient to vitiate it. Reference in this connection may be made to the decisions in Keshav Talpade v. The King Emperor('), Tarapada De and others v. State of West Bengal (supra), Shibban Lal Saxena v. State of Uttar Pradesh and others (supra), Pushkl1J' Mukherjee and others v. S! ate of West Bengal (supra), Sa. tya Brata Ghose v. Mr. Arif Ali, District Magistrate, 2 Sibasagar, Jorhat and others( ) and to K. Yadava Reddy and others v. The Commissioner of Police, Andhra Pradesh, Hyderabad, and another('). It has been held there that even if one of the grounds of deten'ion is irreievant, that is sufficient to vitate the order.

The reason is that it is not possible to assess In what manner and to what extent that irrelevant gronnd operated on the mind of the appropriate. authority and contributed to provide the satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any man'ner prejudicial to the maintenance of the public order. It is obvious that th•o detention of the petitioner was illegal, and that is why we made an order on August 3, 1979 for his release. CHINNAPPA REDDY, J. -A good deal of vehement argument was advanced by Dr. Singhvi to sustain lhe order of detention and this has led me to add this brief note to the opinion of my brother Shinghal, J. , with whose conclusions I agree. The Constitution of India recognizes preventive detention as a necessary evil, but, nonetheless, an evil. So we have, by constitutional mandate, circumscribed the making of laws providing for preventive detention.

While Article 22 Clauses (4), (5), (6) and (7) expressly deal with pre\"~ntive detention, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 19(1) (d) guarantees to citizens the right to mov·~ freely throughout the territory of India subject to rea- • i sonable restrictions made in the i'nterests of the general public as mentioned in Article 19(5). At one time it was thought that Article 22 • was. a complete code in regard to laws providing for proventive deten- ~ tion and that the validity of an order of detention should be determined strictly according to the terms and "within the four cor'ners of that (1) (1943] F. C. R. 49. E2l [1974] 3 s. c. c. 600. (3) I. LR. (1972) Andhra Pradesh 1025. article". It was held in A. K. Gopalan v.

State of Madras( ), that a detenu may not claim that the freedom guaranteed by Article 19 (1) • (d) was infringed by his detention, and that the validity of the law providing for preventive detention was not to be tested in the light of " the reasonableness of the restrictions imposed thereby on the freedom 1 of movement, nor on the ground that his right to personal liberty was infringed otherwise than according to procedure established by Jaw. A theory was evolved that the nature and extent of the Fundamental Rights was to be measured by the object and form of the State action and not by the operation of the State action upon the rights of the individual. This has now been shown to be wrong. In R. C. Cooper 2 v.

Union of India( ) the Full Court opted for a broader view and it was held that it was not the object of the authority making the law impairing the right of the citizen, nor the form of action takeR that determined the protection the citizen could claim; it was the effect of the law and of the action upon the right which attracted the jurisdiction of the Court to grant relief. So, in that case, they rejected the submission that Article 31 (2) was a complete code in relation to the infringement of the right to property by compulsory acquisition and the validity of the law was not to be tested in the light of the reasonableness of the restrictions imposed thereby. So it follows that a law providing for preventive detention and action taken under such a Jaw, to pass muster, have now to satisfy the requirements of both Article~ 19 and 22 of the Constitution.

We are primarily concerned in this case with Article 22(5) which is as follows : "When any person is detained in pursuance of an order made und·~r any law providing for preventive detention, the authority making the order shall, as soon as may be, commwii. cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of makibg a representation against the order". The extent and the content of Article 22 (5) have been the iYbject • matter of repeated pronouncements by this Court (Vide, State of Bom- t bay v. Atmaram('), Dr. Ramkrishna Bharadwaj v. State of Delhi('), Shibbanlal Saxena v. State of Uttar Pradesh(•), Dwarkadas Bhatia. v. . J (I) [19501 S. C. R. 88. ' (2) [1970] (3) SCR 530. (3) [1951) SCR 167. • (4) [1953] SCR 708. 5)[ 1954] SCR 418. MOHD. YOUSUF v. J. & K. (Chinnappa Reddy J. ) 269 Stille of Jammu & Kashmir(').

The interpretation of Article 22(5), cohsistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22 (5) ' t of the Constitution : (1) To be informed, as soon as may be, of the grollllds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being cO'llsidered may obtain relief to him. The inclusion of an irrelevant -0r non-existent ground among other relevant grounds is an infringement -0f the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights.

In either case there is an invasion of the Constitutional j rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfactiO'll of the detaining authority. Dr. Singhvi very strenuously submitted that the first paragraph of the 'grounds' supplied to the petitioner was of an introductory nature, that Paragraphs 2, 3, 4 and 5 referred to the events which furnished the background and that th. , penultimate paragraph alone contained the grounds of detention as such.

He submitted that it was permissible to separate the introduction and the recrtal of events constituting the background from the grounds of detention and if that was done it would be apparent that the order of detention suffered from no infirmity. He sought to draw support for his submission from the decision in Naresh Chandra Ganguli v. State of West Bengal and others(2). It is impossible to agree with the submission of Dr. Singhvi. The annexure to the order of detention detailing the grounds of detention • ( has been fully extracted by my learned brother Shinghal, J. we are unable to see how factual allegations such as those contained in the paragraphs 1 to 5 of the grounds of detention can be said to be merely in- .. troductory or as constituting the background. In Naresh Chandra 2 Ganguly v. State of West Bengal( ) what was read by the Supreme Court as the 'preamble' was the recital in terms of Section 3 (1) (I) [! 956] SCR 948. (2) [19601 I S. C. R. 411.

clauses (a) and (b) of the Preventive Detention Act, namely, that the detenu was being detained in pursuance of a detention order made- • in exercise of the power conferred by Section 3 of the Prewntive De· tention Act on the ground that the detenu was acting in a manner prejudicial to the maintenance of public order as evidenced by thi:' particulars given thereafter. The particulars given in the subsequent paragraphs, the Court said, constituted the grounds. We do not under· stand Naresh Chandra Ganguly v. The State of West Bengal(') as laying down that it is permissible to dissect or trisect the grounds of dete'n'ion into introduction, background and 'grounds' as such. There is no warrant for any such division.

The distinction made in Naresh Chandra Ganguly's (supra) case between tho 'preamble', meaning thereby the recital in terms of the statutory provision and the 'grounds' meaning thereby the conclusions of fact which led to the passing of the order of detention does not justify any distinction being made between introductory facts, backgroundfacts, and 'grou'nds' as such. All allegations of fact which have led to the passing of the order of detention are 'grounds of detention'. If such allegations are irrelevant or vague the detenu is entitled to be released. The attempt of Dr. Singhvi was to treat that allegation which according to him was the immediate cause of the order of detention as th•o only ground of detentio\1 and all other allegations earlier made as were introductory and background facts. We are unable to so dissect the factual allegations mentioned in the document supplied to the detenu as furnishing the grounds of detention.

The last straw which breaks a camel's back does not make weightless the other loads on the camel's back. The grounds of detention begin with the statement that the detenu is a 'die-hard Naxalite'. Dr. Singhvi described a Naxalite as a 'votary of change by resort to violence and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation : the Capitalist Press ! ) . Many may not agree with Dr. Singhvi. Some think of Naxalites as blood-thirsty monsters; some compare thern to Joan of Arc. It all depends on the class to which one belongs, one's politi- • cal hues and ideological perceptions. ) At one stage of the argument ' Dr. Singhvi himself described a Naxalite as an 'ideological revolutionary'. The detenu himself apparently thought that it meant no more" • than that he was a believer in the Marxist-Leninist ideology and so he affirmatively declared that he was a firm believer in that ideology aμol was proud of that fact.

Though he did urge that the expression (l) [196011 S. C. R. 411. I MOHD. YOUSUF v. J. & K. (Chinnappa Reddy!. ) 271 Naxalite connoted a person who sought change through violent means, Dr. Singhvi had, nltimately, to confess that the expression 'Naxalite' was as definite or as vague as all words describing ideologies, such as • democracy etc. , were. It is enough to say that it is just a label which can be as misleading as any other and is, perhaps, used occasionally • for that very purpose. Jn the third paragraph of the grounds of detention it is said that • the detenu made a speech in which he asked his audience to shun the life of dishonour and rise in revolt against oppression. In the fourth paragraph he is stated to be responsible for posters bearing the caption "No solution without revolution". · It is also stated that the posters asked the people to prepare themselves for revolution.

Now, expressions like 'revolt' and 'revolution' are flung about by all and sundry in all manner of context and it is impossible to attach any particular signi~ ficance to the use of such exprossions. Every turn against the. establishment is called 'revo:t' and every hew idea is labelled as 'revolutionary·'. If the mere use of expressions like 'revolt' and 'revolutioll' are I> to land a person behind the bars what would be the fate of all our legislators ? It all depends on the context in which the expressions · are used. Neither paragraph three nor paragraph four of the grounds of detention specifies the particular form of r2volt or revolution which the detenu advocated. Did he incite people to violence? What words did he emp! oy ? · What, then, is the connection between these grounds and "acting in any manner prejudicial to the maintenance of the public order" ?

There is no answer to be gleaned from the grounds reci~cd in paragraphs three and four which must therefore, be held to be both irrelevant and vague. in paragraph five it is said that the detenu instigated educated F. • unemployed youth to go on a hunger strike. A hunger strike, in our country, is a well known form of peaceful protest but it is difficult to connect it with public disorder. We consider this ground also to be vague. and irrelevent. The allegation that the detenu made derogato~y· remarks about Shri Sheikh Mohammed Abdullah, Chief Minister ,. of Kashmir, and compared him with General Zia of Pakistan appears to _iis, again, to be entirely irrelevant. I do not think it is necessary ' to refer to all the grounds in any further detail as that has been done .. by ·my, brother Shinghal, J. · · N. K. A. Petition allowed. .. ,·_ ~.. . -..