S. KRISHNAN AND OTHERS v. THE STATE OF MADRAS
Citation: [1951] 1 S.C.R. 621; 1951 INSC 33
Court: Supreme Court of India
Bench: HARILAL JEKISUNDAS KANIA , M. PATANJALI SASTRI, MEHR CHAND MAHAJAN, SUDHI RANJAN DAS, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 33. Supreme Court of India judgment dated 1951-05-07. S. KRISHNAN AND OTHERS v. THE STATE OF MADRAS. Read the judgment and case details on LawSphereX.
Judgment text
[1951] SUPREME COURT REPORTS S. KRISHNAN AND OTHERS May 7 "· THE STATE OF MADRAS (AND OTHER PETITIONS) UNION OF INDIA-Intervener [SHRI HARILAL KANIA C. J. , PATANJALI SAsTRI, MEHAR CHAND MAHAJAN, s. R. DAS ~d VIVIAN BosE JJ. ] Preventive Detention (Amendment) Act, 1951, ss. 9, 10, 11, 12- Indian Constitution, 1950, Arts. 22( 4) (a) & (b), 22(7)-Dctentions under eariicr Act treated as detentions under new Act and continued for more than one year-Omission to fix maximum period-Infringement of fundamental rights-Contravention of Constitution- Validity of amending Act-Temporary Stateites-Order of detentions -Validity after expiry of Statute. The Preventive Detention (Amendment) Act of 1951 which extended the operation of the Preventive Detention Act of 1950 for a period of one more year, that is, up to 1st April, 1952, effected two material alterations by providing (i) that a reference to an Advisory Board shall be made in all cases within six weeks (s.
9) ; (ii) that every detention order in force at the commencement of the new Act shall continue in force and shall have effect as if had been made under the Act as amended (s. I:! ). The petitioners, who were on the date of the commencement of the amending Act in detention in pursuance of orders made under s. 3(1) (a) (ii) of the Preventive Detention Act of 1950, and who but for the amending Act would have been entitled to be released under the eai"lier Act on the expiry of one year from the date of the order of detention, applied for habeas corpus contending that ss. 9 and 12 of the amending Act which enacted the above mentioned provisions contravened the provisions of Art. 22( 4) (a) of the Constitution and were consequently void under Art. 13(a) inasmuch as the combined effect of these sections was to keep the petitioners in detention for a period longer than three months without reference to an Advisory Board, and also to keep them in detention for a period of more than one year.
The Act was also attacked on the ground that it did not fix any maximum period for detention : Held, per KANIA C. J. , PATANJALI SASTRI, MAHAJAN, S. R. DAS and BosE JJ. :-that ss. 9 and 12 of the Preventive Detention (Amendment) Act, 1951, and not contravene Art. 22 (4) of the Constitution and were not void. Per KANIA C. ]. 1 and PATANJALI SAsTRI J. -The amending Act could be regarded as a law made substantially in accordance with sub-clauses (a) and (b) of cl. (7) of Art. 22, and as such it satisfied the requirements of Art. 22(4) (b) and cannot be held to be unconstinttional or void. Per MAHAJAN and DAs JJ. -The law enacted by the amending statute is not the same law as was declared by the original statute and to that extent the amended statute was in the nature of a new and independent statute; the effect of s. 12 was to make the detention of the petitioners a fresh detention under the r.
cw la\v ; and there was nothing in the new law standing by itself \vhich authorised detention of a person for more than three months without ref~rence to an Advisory Board or for more than one year and there was thus no contravention of any of the provi~ sions of Art. 22 ( 4). Held also per KANIA C. J. , PATANJALI SAsTR1, MAHAJAN and DAs Tl. (BosE J. dissenting). -The Preventive Detention (Amendment) Act, 1951, was not invalid on the ground that it did not fix a maximum period for detention, inasmuch as the Act itself \Vas to be in force only for a period of one year and no detention under the Act could be continued after the expiry of the Act. Born J. -Sub-scction (! ) of s. II of the impugned Act contravened Art. 22 ( 4) of the Constirution inasmuch as it did not fix any maximum period of detention, but on the other hand empowered the government in express terms to order that a detention shall continue "for such period as it thinks fit".
The view that a detention which has been ordered under an Act would come to an end with the expiry of the Act is not sound. ORIGINAL Jm1sn1CT10N. -Petitions Nos. 303, 617 to 619, 621 to 631, 561 to 571, 592, 594, 596 and 600 of 1950. Petitions under Art. 32 of the Constitution for writs in the nature of habeas corpus. The petitioners . were detained in pursuance of orders for detention made under s. 3 (1) (a) (ii) of the Preventive Detention Act, 1950. On the 22nd February, 1951 while they were under detention the Preventive Detention (Amendment) Act, 1951, came into force and this Act by substituting the figures "1952" for "1951" in sub-sec. (3) of s. 1 of the Preventive Detention Act of 1950 continued the operation of the Act until 31st March, 1952. Since the maximum period of detention fixed by the Act of 1950 was one year the petitioners applied for writs in the nature of habeas ·corpus for their release.
The material facts, the points raised by the petitioners and the arguments of the counsel appear in the Judgment. s. Krishnan and Others v. M. 1 . sed had it not been for the provisions of the new Act which purport to authorise the continuance of their detention. Mr. Nambiyar, on behalf of the petitioners, urged that these provisions contravened article 22(4) (a) of the Constitution and were, therefore, . void under article 13(2).
Article 22(4) (a) provides: "No law providing for preventive detention shall authorise 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 sufficient 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). '' It will be seen that two conditions have to be fulfilled in order that a person can be detained for a longer period than three months; ( i) his case must be referred to an Advisory Board constituted in the manner specified and (ii) that Board must make a report before the expiration of three months that there is sufficient cause for such detention.
Section 12 of the old Act having provided that there was to be no review by an Advisory Board in cases falling within section 3 (l)(a)(ii), the petitioners' detention in pursuance of orders made under the latter section fell under article 22 ( 4) (b), and there was no question, therefore, of such detention contravening article 22 (4) (a). The scheme of the new Act, however, was to extend the benefit of a review by an Advisory Board to all cases and to bind the detaining authorities to act con-formably to the report of the Board. The method adopted to give effect to this scheme was to delete some of the provisions of the old Act and to substitute in their place new provisions. The material provisions of the new Act are sections 9, 10, 11 and 12.
Section 9 provides for a reference to an Advisory Board within six weeks from the date specified in sub-section (2) which says "The date referred to in sub-section (1) shall be-(a) in every case where at the commencement of the Preventive Detention (Amendment) Act, 1951, the person is under detention in pursuance of a detention order made under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1) of section 3, the date of commencement of the said Act ; and (b) in every other case the date of detention under the order". By section 10 the Advisory Board is required to submit its report within ten weeks from the date specified in sub. section (2) of section 9.
Section 11 ( 1) authorises the appropriate Government to continue the period of detention for such period as it thinks fit in case the Advisory Board reports that there are sufficient grounds for the detention, while sub-section (2) provides tliat the Government shall revoke the detention order and release the person concerned if the Advisory Board reports the other way. Sub-section (1) of section 12 declares for the "avoidance of doubt" that every detention order in force at the commencement of the new Act "shall continue in force and shall have effect as if. it· ~ad been made under this Act as amended" by the "'new Act, and sub-section (2) provides that nothing contained in sub-section (3) of section 1 or in sub-section (1) of section 12 of the old Act shall affect the validity or duration of any such order. It will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above, section 12 had the effect of enlarging .
·he period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such cases shall have effect as if it had been made under the new Act. On that basis, the new Act seeks to bring detention orders in force at its commencement and more than three months old into conformity with article 22( 4) (a) by prescribing a period of six weeks in section 9 for referring such cases to the Advisory Bo~. rd and ten weeks in section 10( l) for the submis-sion by the Board of its report, the period in each case being calculated from the commencement of the new Act.
But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to submit its report before the expiration of that period, with the result that their detention contravened article 22(4) (a). No doubt the detention up to the commencement of the new Act was lawful under section 12 of the old Act, as it was in accordance with sub-clause (b) of clause ( 4) of article 22, but that could not make the petitioners' continued detention any _the less a viola-tion of article 22(4) (a) after the deletion of old section 12. It is a fallacy to treat what was a lawful detention under sub-clause (b) as being no detention at all for purposes of sub-clause (a).
Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefore, it could not lawfully be continued under article 22(4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions. It was said that if the petitioners had been released on 22nd February, 1951, and re-arresteC. 1nd detained immediately thereafter under the new Act such detention would have been valid. But, for proceeding in that manner the enactment of section 9(2) (a) and section 12(1) would be unnecessary. Parliament has, however, adopted a different mode of proceeding by providing for the continuance of detention orders in force at the commencement of the new Act on the basis that they should have effect as if they had been made under the new Act.
The resulting position must, therefore, be dealt witn only on that basis and not on any other hypothetical footing. The Attorney-General, however, contended in the alternative that the constitutional validity of section 9 (2) (a) and section 12 (1) of the new Act could be sustained under article 22(4) (b) which has been held by a majority of the Judges in A. K. Gopalan v. The State of Madras (1) to be a distinct and independent provision authorisil). g preventive detention for a period longer than three months in · accordance with a law made by Parliament under sub-clauses (a) and (b) of clause (7) of article 22. The Attorney-General claimed that the aforesaid provisions were such a law, none the less because Parliament may have intended to make a law within article 22 (4) (a) by providing for a review by an Advisory Board in all cases or preventive detention.
On a question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hall-mark which stamps a preventive detention law as one necessarily falling within sub-clause (a) of clause (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that sub-clause. The law could still be upheld if it fulfilled the conditions laid down in sub-clause (b) of clause (4). Mr. Nambiyar, however, submitted that the new Act did not fulfil those conditions, for it is not a law made under sub-clauses (a) and (b) of clause (7). The word "and" should be understood in its ordinary conjunctive sense, and the new Act neither prescribes the circumstances and classes referred to in sub-clause (a) nor thr co [t950J s. c. R. 88. 7-10 S. C. India/67 maxim um period of detention required to be prescribed under sub-clause (b) of clause (7). The contention is devoid of substance.
The new Act can, in my opinion, be regmx:led as a law made substantially in accordance with sub-clauses (a) and (b) of clause (7), According to the majority view in Go pa/an's case, sub-clause (a) of clause (7) being an enabling provision, the word "and" should be understood in a disjunctive sense. The combined effect of sections 9(2) (a) and 12(1) is to provide, in a certain class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in sub-clause (a) of clause (4).
And, although the new Act does not in express terms prescribe in a separate provision any maximum period as such for which any person may in any class or classes of cases be detained, it fixes, by extending the duration of the old Act till the 1st April, 1952, an over-all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires (Craies on Statutes, 4th Edition, p. 347). Preventive detention which would, but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in substance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date.
It seems to me, therefore, that section 9(2) (a) and section 12(1) of the new •Act substantially satisfy the requirements of sub-clause (b) of clause ( 4) of article 22, and cannot be declared unconstitutional and void. The objection to the validity of section 11(1) can be disposed of in a few words. The argument is that the discretionary powc:r given to the appropriate Government under that sub-section to , continue the detention ''for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of article 22(4). But, if as already observed, the new Act is to be in force only up to 1st April, 1952, and no detention under the Act can continue thereafter, the discretionary power could be exercised only subject to that over-all limit. The objection therefore fails. In the result the petitions are dismissed. MAHAJAN J.
-The question to be decided in these petitions is whether the Preventive Detention (Amendment) Act, 1951, or any part thereof is invalid and whether the petitioners who have been detained are entitled to a writ in the nature of habeas corpus on the ground that their detention is illegal. The Act was enacted by Parliament on the 27th February, 1951, and according to its express terms will cease to have effect on the 1st April, 1952, save as regards things done or omitted to be done before that date. The point that has been canvassed before us is that sections 9(2) {a) and 12 of the Act are invalid as these infringe the fundamental rights conferred under articles 21 and 22 of Part III of the Constitution.
Section 9 of the Act as amended reads as follows :- " (1) In every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in sub-section (2) place before an advisory board constituted by it under section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report made by such officer under sub-section (3) of section 3. (2) The date referred to in sub-section (1) shall be- (a) in every case where at the commencement of the Preventive Detention (Amendment) Act, 1951, a person is under detention in pursuance of a detention order made under sub-clause ( i) or (ii) of clause (a) of sub-section ( 1) of section 3, the date of commencement of the said Act ; and (b) in every other case the date of the detention order.
" Section 12 is in these terms :- "For the avoidance of doubt it is hereby declared- ( a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951 ; and (b) nothing contained in sub-section ( 3) of section 1, or sub-section ( l) of section 12 of this Act as origi· nally enlcted shall be deemed to affect the validity or duration \>f any such order. " Mr.
Nambiar for the detenus challenged the vires of these sections on ~he following grounds : ( l) That article 22(4) of the Constitution limits the legislative power of Parliament and State legislatures in respect of preventive detention laws in the matter of duration of the period of detention and provides that no law of preventive detention can authorise the detention of a person for a longer period than three months without the inter-vention of an advisory board and without obtaining its opinion with. in three months. The amending Act, 1951, by section 9 authorizes detention for a period longer than three months without the opinion of the advisory board having been obtained within the said period of three months from the date of the actual detention in respect of persons detained under Act IV of 1950 as it or~nally stood and it thus infringes the fundamental right conferred by article 22( 4).
(2) That Parliament in exercise of powers conferred on it under artide 22(7) having prescribed in section 12 of Act IV of 19'0 a maximuttl period of one year for detention in certain classes of cases without obtaining the opinion of the advisory board, that period of one year became a part of the content of the fundamental right conferred under article 22(4) of the Constitution. Sections 9 and 12 of the amended Act contravene this fundamental right inasmuch as they authorize detention of persons yvho were detained under orders passed under section 3 (1) (i) and (ii) of Act IV of 1950 beyond the period of one year prescribed therein, and are therefore void. (3) That Parliament has no authority to alter the period of one year prescribed by it by virtue of authority given to it under article 22 (7) (b) of the Constitution so as to affect the cases of persons detained under Act IV of 1950.
(4) That the Constitution does not envisage detention for an indefinite period and that inasmuch as the amended Act has failed to provide a maximum period for the detention of a person, it is repugnant to the Constitution and is void ; that it was obligatory on Parliament while making the law providing for preventive detention to fix the maximum period for such detention. (5) That the provisions ot these sections infringe article 21 of the Constitution inasmuch as they authorize detention contrary to procedure established by law (Act IV of 1950) in r~s pect of detentions under that Act, because under established procedure detention beyond a period of one year was void. For the reasons given above it was contended that as in the case of the petitioners the maximum period of one year under section 12 of Act IV of 1950 had expired on 27th February, 1951, they were entitled to their release.
For a proper appreciation of the points urged by the learned counsel and the manner in which they were combated by the learned Attorney-General, it is necl! s-sary to shortly state the nature of the relevant amendments introduced by the amending Act iii. the Preventive Detention Act, IV of 1950. In section 8 of Act IV of 1950, which concerns tl1e constitution of advisory boards, the new Act has provided that the board shall consist of three persons instead of two except in cases s -10 S. C. In dia/67. where before the commencement of the amended Act reference had already been made to an advisory board. Section 9 of Act IV of 1950 has been substituted by section 9 'of the amending Act and it gives the benefit of the advisory board to all classes and cases of persons, who under Act IV of 1950 were not entitled to that benefit. It makes it . obligatory on government to place all these cases, like all other cases, within six weeks from a prescribed date before an advisory board.
In section 10 the amended Act makes it obligatory on the adviso_ry board to submit its report to the government within ten weeks of the date specified under section 9 and it also authorizes the advisory board to call for such information as it deems necessary from government and from the person concerned and it empowers it to give a hearing to the detenu if in any particular case it considers it essential. Section 11 makes the opinion of the ad~isory board binding on government. It also authorizes government to continue the detention of persons for such period as it thinks fit in cases where the opinion of the board is in favour of the continuance of detention. Section 12 provides that orders of detention in force at the commencement of the amended Act will be deemed to have been made under this Act. A new section, 14, has been introduced in Act IV of 1950 and it authorizes temporary release of persons detained.
The provisions of the amended Act are thus a great improvement on the original Act inasmuch as they provide a greater opportunity to the detenus of pro-ving their innocence than they had under the original Act. The detention of a person without the case being referred to the opinion of an advisory board constituted of independent persons has been completely done away with, except for a period of three months provided for in article 22(4) of the Constitution. What the amended Act has in substance done is that instead of the cases of persons preventively detained being considered by ordinary courts of law, a special tribunal designated as an advisory board and consisting of men of high judicial experience has been given authority to examine their cases within a prescribed period and the decision of that authority has been made binding on government.
This tribunal is obviously no substitute for a court of law but a provision like this is in the nature of a substantial solatium in cases of preventive detention wherein ordinarily the detaining authority is the judging authority as well. Shortly stated, Mr. Nambiar's attack on these bene-ficial provisions and concerning their vires is based principally on the method adopted by the draftsmen of the Act for switching over the detentions which were being continued under section 12 of Act IV of 1950 and which were valid by virtue of the constitutional provisions contained in article 22(4) (b) of the Constitution to the constitutional provisions contained in article 22( 4) (a) so that they may be given the benefit of an advisory board's opinion. His grievance is that in doing so the amended statute has enlarged the period of three months provided under article 22( 4) for a report of the advisory board and has extended the period of one year mentioned in section 12 of Act IV of 1950.
This argument is based on the assumption that the period of one year mentioned in section 12 of Act IV of 1950 was an Immutable and unalterable orie and that Parliament could not amend section 12 of tl1e Act in any manner whatsoever once having enacted it. I am unable to accept this contention. It seems to me, that it was open to Parliament to amend section 12 and substitute another maximum for the period of one year mentioned therein. If Parliament had recourse to that alternative, t11en in my opinion, the petitioners could have no possible grievance as regards the vires of the new legislation. As regards the period of three months, it was essential to fix some date from which that period had to be calculated in respect of cases which were previously governed by section 12 of Act IV of 1950.
Under that section they did not have the benefit of the advisory board and when the new law gave them that benefit, a t(rminus quo had to be fixed for the period of three months during which the advisory board had to submit its report. The amended Act achieved this by prescribing in these specified classes of cases the date of the commencement of the amended Act as the date from which this period was to begin and by section 12 it provided that all detentions continuing at the date of the commencement of the amended Act shall be deemed to be detentions under the amended Act. After a careful consideration of the argument of Mr. Nambiar I have reached the conclusion that there is considerable force in the reply made to it by the learned Attorney-General.
He contended that article 22(4) provides that no law providing for preventive detention shall authorize detention of a person for a longer period than three months and that the amended Act has not in any manner infringed this provision ; on the other hand, it provides that the advisory board must make its report to the government within ten weeks. It was urged that in order to judge the vires of the amended Act it was not relevant to take into consideration detention of persons validly detained under a different statute and that its vires must be adjudged on its own provisions and not with reference to what has actually happened under another law.
It was frankly conceded that if Parliament or a State legislature passed legislation in a manner which amounted to a fraud on the Constitution inasmuch as those enactments were passed with the purpose of defeating the constitutional provisions, then those laws could be attacked on that ground but not on the ground of their vires, that in the present case no such argument had been taken or could be taken and that being so, the contention of Mr. Nambiar was not justified. In my opinion, the statute as framed docs not in any way contravene or abridge either the provisions of article 21 or of article 22. It was open to Parlia. ment, as already observed, to alter the maximum period of detention mentioned in section 12 of Act IV of 1950 and to enhance it. It was also open to government to release these detenus after the expiry of one year and to serve fresh orders of detention on them after their revise under the amended Act.
If that had been done, no question could possibly be raised that the period of three months provided for in article 22(4) of the Constitution had in any way been affected. Instead of going through that form of ceremony, Parliament by section 12 of the amended Act provided that all detention orders in force under Act IV of 1950 be treated as detention orders under the amended Act. · By the effect of this section the detention of all such persons becomes a fresh detention, under the new law, with the result that nothing in the amended statute can · be said to abridge the fundamental right conferred by article 22 ( 4) of the Constitution.
It was argued that the amended statute is not a new and an independent statute and that in spite of the amendments it remains the same statute as was passed in 1950, and that the detention of the petitioners is under the same law of preventive detention and it therefore offends against article 22( 4) of the Constitution and that it virtually amounts to tacking of the period of detention under one Act to the period of detention under another Act and as such amounts indirectly and substantially to an infringement of the fundamental right. In my opinion, this contention, though attractive, is without force. Technically speaking, an amended statute remains the same statute as originally enacted but from that proposition it does not follow that the law contained in the amended statute is the same law as was contained in the original one. Section 9 of the original Act has been substituted by section 9 of the amcI).
ded Act and declares a new law and it is not a re-enactment of the law as was contained in the earlier statute. Section 12 of the original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by section 12 of the amended Act is in the nature of a substituted provision. It seems to me that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent statute. The petitioners are being detained today by [1951] force of the provisions contained in sections 9 and 12 of the amen [19SOJ s. c. 1.. 11s. l~l of that expression in article 21 of the Constitμtion. S-lVWuual Further, the present detention of the petitioners being ot/Ot~' by virtue of section 12 of the amended Act a new '17,. 3••tt"· •I detention under the amended Act, the procedure pres- JI.....
- cribcd by the amended Act is the procedure established by law within the meaning of article 21. For the reasons given above, in my opinion the Preventive Detention (Amendment) Act, 1951, is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution and the pctitionen arc not entitled to their release merely on the ground that the period of one year mentioned in section 12 of. Act IV of 1950 has expired. On the merits of the petitions it was urged (1) that the grounds supplied to then were vague and insuffi-cient to enable them to make a, proper representation, and (2) that their detention was mala fide and on poli· tical and party considerations. There is no force what• ever in ~hese contentions. The result is that all these pet1t1ons arc dism! _ssed and the rules are discharged. This order will have force in the case of petitioners who have so far not been released by Government. S. I.. D•• J. S. R. DAs J.
-1 agree that the petitions should be dismissed and I do so substantially on the grounds itatcd by my learned brother Mahajan. BosE J. -With the utmost respect I am unable to accept the majority view. fo my judgment, section 11 (1) of the amcndip. g Act is ultra virei. The ground on which I hold it to be so was suggested by me in the course of the arguments. It was, however, not very fully dealt with possibly because I expressed my view at a late stage and possibly because I did so somewhat akctchily. But as I am ploughing a lonely furrow . that, fortunately, will not much matter. ' Articles 21 and 22 confer the fundamental right of. personal liberty. The first is general, and as the meaning of the words "procedure established- hf law" ha& been thoroughly discussed in Gopalan's casc:(1), I do not intend to cover that ground. But so ·far as article 22 ( 4) is concerned, my opinion is that it confers a fundamental right not to be kept under preventive detention beyond a certain period.
The extent of ·that pcriqd can vary but it can only be extended beyond three months within certain fixed liniits and subject to specified conditions. Article 246 read with item 9 in List I and item 3 in List III of the Seventh Schedule confcrs jurisdiction upon the Union Parliament and ·the State Legislatures to make laws for preventive detention, but article 22 (4) imposes restrictions. It says that- • "No law providing for preventive detention shall authorise the detention of a person for a longer period than three months," unless certain conditions arc fulfilled. The conditions arc set out in sub-clause (a) and sub-clausc (b). Under the former, a law can provide for preventive detention over three months provided (1) there is an advisory board of a certain character, (2) the board is of opinion that there is sufficient cause for longer detention, and (3) the board reports before the expiration of the three months.
Then follows a further restriction which is contained in the proviso to 5ub-clause (4). This states that- "nothing in this sub-clause shall authorise the dc. ~ention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7) . " Sub-clause (b) of clause (7) reads as follows :- " (7) Parliament may by law prescribe- (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. '' The second set of conditions is given in sub-dause (b) Gf clause (4). This sets out that a person can also be detained beyond three months providcd- '1). (19SOJ s. c. R. 118. "such person is detained in accordance with the provisions of any law :inade by Patliament under sub-clauses (a)~ Cb) of claus. e (7). '' I venture to underline the "and" becausei in my opinion, a lot turn~ on it. But I shall deal with that later.
·Sub-clause (a) of clause (7) empowers Parliament to prescribe- . "the circumstances under which, and the cla~ or classes of cases in which, a person may. be detained fot a period longer than three months under any law providing for preventive detention without obtaining the opinion ·or an advisory board in accordance with the provision of sub-clause (a) of clause (4). " In my opinion, these provision~ confer a fundamental right not to be detained beyond a certain period. The extent of that period can vary but the maximum period of detention cannot exceed tertain fixed limits. Those limits are (a) in the first instance, three months : if not, (b) the · maximum prescribed - by Parliament under sub-clause (7) (b ). In my opinion, no law can be made authorising detention either under sub-clause (4) (a) or ( 4) (b) unless maximum period of detention 1' · prescribed by Parliament under sub-clause (7) (b). I do hot agree with the contention that tlie word "may" in clause (7) means "must".
I am not prepared to depart from the usual meaning of worti& unlt:sa compelled to do so for overwhelming reasons. In my . opinion, Parliament is free to prescribe or not to prescribe a . maximum peried under clause (7) (b). It cannot be compelled to do so. But equally neither Parliament nor a State Legislature is compelled to authorise preventive. detcniiOll beyond three months. If, howevc:r, either wishes ltl do so, then it il bound to conform to the provision$ -of either sub inion, be no right of withdfawal until . he fixes the limit. Look at it another way. A British General is told by the Indian Government that he may travel from India to Burma quickly and easily by plane. He is also told that he may in addition drive by car over the hills and through the jungles provided he does not go beyond the confines of any road made ·hy the Burmese Government ; and the Burmese Government is told , that it may, if it so chooses, put in a. road at India's expense.
It is fairly obvious that the Burmese Govern~ ment is not bound to make the road and it is equally obvious that under these conditions the General will not be able to go by car· unless the road is made. I realise that analogies are often iqaccurate and' may be misleading. But these examples serve to illustrate the line of my reasoning. In my opinion, the Constitution (a) tells the State Legislatures that they may legislate for preventive detention beyond three months but not beyond a limit which Parliament may fix and (b) tells Parliament that Parliament itself may do the same thing provided the detention does not exceed a maximum which it may itself fix. There is no need ·to fix a maximum in either event but if that is not done, then there can be no legislation under clause (4) (a), Until tl\e road is built there is no right of way. The same limitation attaches to clause (4) (b ).
Legislative action cannot be taken under this unless, first, the law is made by Parliament and, second, it is madtt "μrlEler sub-clauses (;i. ) and (b) of claus¢ (7)". l again "enturc to underline the "and" becaqse, in my opinion, "'-andl' means and &liould mean "and" unless there is compelling reason to make it mean "or". To my mind, not only is there no compelling reason here but, on the contrary, there are powerful reasons why it should be construed in its usual and normal sense. The reasons are these. Articles 21 and 22 confer a fundamental right and give a fundamental guarantee. It is therefore the duty of the Court to sec that the right is kept fundamental and that the fullest scope is given to the guar. antee. It is our duty to ensure that the right and the guarantee are not rendered illusory and meaningless.
Therefore, wherever there is scope for difference of opinion on a matter of interpretation in this behalf, the interpretation which favours the subject must always be used because the right has been conferred upon him and it is the right which has been made fundamental, not the , fetters and limitations with which it may be circumscribed by legislative action. It is true the full scope and content of the right cannot be determined without examining the boundaries within which it is to be confined, and I agree that in interpreting these provisions equal weight must be given to all the clauses; also that no one part can be treated with greater sanctity than the rest. But if, when all that is done, doubt still remains, then the doubt must, in my judgment, be resolved in favour of the subject and not of the State. Brush aside for a moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and "and" "or", or "m4yu and "m:ust".
Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution. What sort of State are we intended to be? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? Is not the sanctity of the individual recognised :and emphasised again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power ? I have no doubts on this score. I hold it therefore to be our duty, wh. en there is ambiguity or doubt about the construction of any clause in this chapter on Fundamental Rights, to resolve it in favour of the freedoms which have been so solemnly . stressed.
Read the magnificent sweep of the preamble:- "We, the people of India, having solemnly resolved to constitute India into a · Sovereign Democratic ·Republic and to secure to all its citizens : Justice, Liberty, Equality, Fraternity. " Read the provisions of the chapter on Fundamental Rights:-- "All citizens shall have the right etc. " • • "No person shall be deprived of his life or personal liberty except according to procedure csablished by law. " "No person who , is arrested . shall be detained in custody without etc. " 'No law providing for preventive detention ·shall authorise etc. unless-" Read the provisions which circumscribe the powers of Parliament and prevent it from being supreme. What does. it all add up to ? How can it be doubted that the stress throughout is on the freedom conferred and that the limitations placed on them are but regrettable necessities ? I do not doubt that in construing the f'.. onstitutior:i we must do.
so according to all the usual well recognised canons of construction. I· do not doubt that when the language i. s plain, full effect must be giftn to it whatever the implications. All I insist on is that when there is ambiguity or doubt and it is poMible to take either this view or that, then we must come down on the side of liberty and freedom; and I err in good company in so holding. Lord Romer said as much in LiversiJge's case (1) though he made an exception in the (J) (t9'J2J A. c. 206 at 2so. case of war legislation. How can it be said that in this case there is no ambiguity and that there is no room for doubt ? When I am asked to hold that "and" means "or,, and that "may" means "must", how can it be said that there is no room for difference of opinion? When I am old that- "no law providing for preventive detention shall authorise the detention of a person for a longer period than three months" unless there is an Advisory Board etc.
, and even then not beyond "the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7)" how can it be said that there is no doubt about the intention and that this clearly and unambiguously means that the detention can be for an. indefinite period even under a State law if Parliament does not choose to act under clause (7) (b)? To my mind, there is ambiguity and there is room for doubt. I feel that the people of India chose for themselves the free way of life and that they entrusted to Parliament, which represents their will, the duty of satisfy-ing itself that any limitations hereafter to be placed on the freedoms conferred. are necessary and essential and that these limitations will not exceed such limits as Parliament itself shall determine solemnly and deliberately, after anxious scrutiny and dutiful care.
I cannot bring myself to believe that the framers of our Constitution intended that the liberties guaranteed should be illusory and meaningless or that they could be toyed with by this person or that. They did not bestow on the people of India a cold, lifeless, inert mass of malleable clay but created a living organism, breathed life into it and endowed it with purpose and vigour so that it should grow healthily and sturdily in the democratic way of life, which is the free way. In the circumstances, I prefer to decide in favour of the freedom of the subject. I am not hampered here by considerations of war . necessity or emergency legislation where some authorities hold that the canons of constructions are different and that allowance must be made in favour of the State for the imperfections of language used in legislation which had to be drafted and enacted in a desper-ate hurry with the State in dire and immediate peril.
I am construing a Constitution which was hammered out solemnly and deliberately after the most mature consideration and with the most anxious care. I feel bound, therefore, when there is ambiguity or doubt, to resolve it in favour of what I conceive to be the free way of a Sovereign Demo~atic Republic. After all, who framed the Constitution and for whose benefit was it made ? -not just for those in brief authority, not only for lawyers and dialecticians bqt for the common people of India. It should therefore be construed, when that can be done without doing violence to the language employed, in a simple straightforward way so that it makes sense to the man in the street, so that the common people of .
the land can follow and under-stand its meaning, To my mind, the whole concept of the Constitution is that after years of bitter struggle the citizens of India are assured that certain liberties shall be guaranteed to them and that these liberties shall not be curtailed beyond limits which they and all the world can know and which can only be fixed by the highest authority in the land, Parliament itself, directly and specifically after affording opportunity for due deliberation in that august body.
I would struggle hard against any interpretation which permitted evasion of those important limitations and which permitted those hardwon liberties to be curtailed by some accidental side wind which allows virtual dele-gation of the responsibility for fixing the maximum limits which Parliament is empowered to fix to some lesser authority, and worse, for' fixing them ad hoc in each individual case, for that, in my opinion, is what actually happens, whatever the technical name, when Parliament fixes no maximum and lesser authorities are left free to decide in each case how long the individual should be detained. I am clear that these are not matters which should be viewed technically or narrowly but in the broad and liberal spirit in which they were · conceived. Bearing this in mind, I will proceed to examine the impugned provisions of the amending Act. In my judgment, section 9 is good because it confers a benefit and a privilege. It takes away nothing.
It gives all detenus the right to ga before an Advisory Board for review of their cases. It confers this right not only on those who may be detained In the future hut also on those already under detention. And further, it confers this right on those who had no such right before. This is not an infringement of any fundamental right nor does it contravene any article of the Constitution; therefore Parliament was free to legislate as. it pleased regarding that. It was free artificially to alttr the starting point of the order of detention which i& what it has done in sub-section (2)(a). That section,· in my judgment, is intra vires. So also is new section 12 which continues in force existing detentions despite the expiry of the old Act and states that the passing of the new Act shall not affect either the validity or Jurlllion of orders passed under the old Act. It will be remembered that the detentions we are considering in these cases were good under the old Act.
That Act prescribed a maxim,um limit, namely one year, for this class of detention. In my opinion, Parliament had the right to say in this particular manner, for the purpose of removing doubts, that detentions already in force under that Act should continue in force for the maximum period already prescribed. That, to my mind, is the force of the words "continue," "validity" and "durlltion. " That would have been the result in any event but section ll is there to remove possible doubts. Section 11 (2) is alS sympathy at all. " and as Mr. Justice Holmes of the United States Supreme Court said, speaking of the American Constitution, "If there is any principle of the Constitution that more imperatively- calls for attachment than ahy other it is the principle of free thought-not free thought for th<>se who agree with us but freedom for the thought that wt hate. " I respectfully dissent from the majority view and consider that section 11 (1) is ultra vires.
It follows, in my view, that the present detentions are bad. I am of opinion that the petitioners in these cases arc ~ntitlcd to immediate rdeasc. l'e'litions dismissed. Agent for the petitioner in Petition No. 303 : S11brali-manyt1m. Agent for the Petitioners in Petitions Nos. 618, 619, 021, 622 and 624 to 631 : V. P. K. Nambiyar. Agent for the State of. Madras: P. A. Melita. Agent for the State of. Assam : N aimit Ltd. Agent for the Union of India: P. A. Mehta. (I) (1923) L. J. K. B. 797
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