STATE OF PUNJAB v. JAGDEV SINGH TALWANDI

Citation: [1984] 2 S.C.R. 50

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, AMARENDRA NATH SEN, D.P. MADON, M.P. THAKKAR

Case summary

Talwandi, to challenge an order of dotention pas~ed by the District Magistrate, Ludhiana, on Octob.

Judgment text

STATE OF PUNJAB v. JAGO. EV . S. INGI-i TALWANDI. December 16, 1983 . [Y. V. CHANDRACHUD, C. J. , P. N. BHAGWATI, AMARllNDRA. NATH SEN, D. P. MA. DON AND M. P.. THAKKAR, JJ. ] A· Con'Stifution ofJndfa, ]950, Artic! e 22 (5)-Pr_eventive Detention-Duty OJ detaining Authority-Con1p(iance with· strict terlns of the Constitution is a . 1nust-National Security Act (Act LXV of1980) section 3. l. B · . Preventiv'e. Detentio~-,vational Securiiy Ac/ (Act LXV) of19~o-seCtion 3 read. w;th Article 22(5) of the Constitution of Jndia, 1950-Ful. ' details of the :Prejudicial activi11:es (dated, tinte pndplace) mentioned in the grout'ds of detention,-'· but not in the supporting particulars-Whether non~1nention fr1 the ·,~supporting particulars vitiate the entire pdoceedings" ? . C. Preventive Detention-Evidence gathered need not be furnished to the Deten1,1. .. D. Prl}Vt:ntive Detenton matter. J-Corllzter-afjidavits,by the detaining authority 01ireceipi ofnotice·ofthe writ, ilot bein'g /lirnished...

:. _Effect of· non-Jurnishing- Constitution ofIndia, 1950 Article 22(5). ,.... E. Practice & procedure-Pronouncing final order without reasoned j1idgment and reserving the . Janie in Preventive . Det"ention CaSes-Prac1ice deprecated Conrlilution OfIndia Ar_ticle 226, 136 read with Civil Procedure Cod~ sections 33,107 ' aizd. Criminal Procedure Code, Section 354, Dif! er~nce' betwetn_High Court & Supreme Cour~ Proceffures, explained. · . The respondent challenged the order of his detention Passed ~y the District ' Magistrate, Ludhiana on October 3',1983 under section 3 (::i) read with section 3 (2) of. the Natio'nal Security Act,·1980. through Criminal \Vrit P~tition '. No. 516 of· 1983.. :\ccor it is difficult for this Court to I (Chandra~hud, C. J. ) 53 J983 whereby the respQildent was detained under section 3 (3) read· with section 3 (2) of the . N'aiional . security Act, 1980.

The respondent was arrested in pursuance of the order of de- · · te'ntion on the night between October 3 and 4, 1983: ·He was first ladged in the ·central Jail, Patiala and from there . he was taken to A'nb1la, Baroda and Fathegarh (U,P. ). He filed a Writ Petition . . (No. 463 of 1983) in the High Court . to challenge his transfer and detention in a place far awity fr,om . Ambala.. He withdrew that p~tition on an assurance by the Government that he will be sent back to /\:nbila. whi wn as 'Nihang Chhowaui' at Baba Bakala, District Amritsar, delivered a provocative speech to a . Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference to the incident dated 2-7-1983 of encounters between Nihangs and police at Baba Bakala and TaranTaran and stressed· that in order. to take revenge Sikhs would kill their (Police)' four persons in lieu of the two Nihangswho _had been killed 'in the said enccunters. (2) That while ·addressing a conference .

convened by • the AISSF (All India Sikh Students Federation) on 20-9-1983 at Gurdwara Manji Sahib al Amritsar and attended by about 7000/8000 Sikh students, you made a provocative. speech wherein you said· that all efforts made for the su. ccess of the Akali Mo·rcha having failed, it was still time to establish in Punjab a Government parallel. to the ~entraf Government and that you are in a position to form such a Government. · You further exhorted that the establishment \ not' make an effective representation against the order of detention because the material supplied to him, that is to say, the 'C:I. D. . report of the speech alleged to have been. made by him at the Shaheedi Conference, did not contain the material 'r- 'particulars which formed an important' consititlient of the grounds ' served upon him. His grievance is. that t. he C. I. D. 'report of his speech does not mention that : (! ) the Conference was held on July 8, !

'983; (2) it was held at Nihang Chhowani; (3) it was held between the hour~ of u: AM. and 4. 45. P. M. (4) it was a "S)iaheedi Conference"; (5) them was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an ~ncounter at Baba Bakala and Tarn Taran. ,. ' Arti_cle 22 (5) of the Constitution, around which' the argument of the respondent revolves, reads thus • "When any person is detaine4 ill ·punuance of an order ,made under any 'raw providng for p;eventive detention, the .. authority making the order shall, as soon as may be, communicate to such pei;son-the grounds on which the order ' has been· made and shall afford him the earliest opportunity + ol' m1king a. representation ~gains! the order. " r , . J ' > This Article has come up for consideration before . this Court in a ·large number of cases. One of the earliesi°judgments of this Court on the interpretation of this Article is reported in. Dr. Ram- ,. krishna Bhardwaj v.

·The Sfate of Delhi,(ll in which Patan)ali Sastri, C. J. observed that under Article 22 (5) of the Constitution, the detrnu has the right·to be furnished with particulars of . the grounds of his detention, ·"sufficient to enable him to make a representation which, on 'being considered, may give relief to him". Khudiram-Das v. The State ofWest Bengal,• is aJudgment. of a four Judge-Bench of this Court in a cas~ which arose under the Main- ,. ·. , H, (1) [1953] S. C. R. 708 • A"'r' (2) [1975] 2 S. C. K. 832, 838, 840. • PUNJAB v. J. S. TALWANDI (Chandrachud, C. J. ) 59 tenance of Internal' Security '! '\ct, 1971. One of us.. Bbag\\ali, J. , · '· who spoke for the Court, surveyed the decisions bearing on the ques-· ticin of the obligation of the detaining authoirty and explaind the nature of that obligation thus' :· · "The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be coverei!

by 'grounds' within the contemplation of article 22 (5) and sectiop 8 and are Tequired to be communicated to the detenu unless their disclosure is considered by the autho. rity to be against the public inter~st. This bas ahvays been the view consistently taken by t! iis Court in a series ·of decisions. '' C. - In Mohammad Yo~suf Ratherv. The State ojJammu & Kashmir,(ll Chinnappa Raddy, J. , in a concurring judgment, deah with t. he im- -'. plications of Artie](> 22 (5) of the Constitution thus : "The extent and the content of Article 22 (5) h~ve been the sullject matter of repeated pronouncements by thi1; Court . (Vide State of Bombay v. Atmaram (2), Dr. Ramkrishna Bhardwaj v. State of Delhi('), Shibbanlal Saxena v. State of Uttar Pradesh (3) Dwarkadas Bhatia v. Stille of Jammu & 4 • Kashmir ( ). The interpretation of Article 22; consistently "' . ac! opted by this Court, is, parhaps, 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) of the Constitution : (1) To be iI1formed, as soon as may be, of the grounds on· which the order of detention is based, that is, the grounds which led to th~ subjective 8atisfactioii of the detaining authority and (2) ·to be . F .. afforded the earliest opportunity of making a representatfon .. against the order of detention, that· is, to be furnished with sufficient particulars to enable him to make arepresentation which on being considered may obtain, relief to him. " · . In Khudiram JJas v. The State of We. -t Bengali" it was observed -that. these two safeguards 'iare the barest minimum which must be ' . . . . . (1) [1980] 1 $. C. R. 258, 268; 269. (2) [195tJ s. c. R... 161. (3) J1954] S. C. R. 418. ( 4) [1956] $. C. R. 948. ,. ·' . •;60. SUPR_EME COURT REPORTS [19'. 84] 2 s. c. R. : . ,.

· observed before an executive authorij:y can be permitted to preven· ,tively detain a persbn and thereby drown his right of personal lib~rty in tho nanie of public· good and social security". , The q[1estion which we have to consider in the light of these decisions iS whether sufficient particulars ofthe first ground ofdetention were furnished to the respondent so as to enable him to exerci'e effectively his constitutional right of making a representation against . the order of Jetenlion. The obligation which rests on the detaining authority in. this beh~lf admits. no exception and its rigour cannot ·be relaxed under any circumstances. Having given our anxious consideration to this questc'n~ it seems to us impossible to accept the view of the High Ccurt that sufficient particulars ofthe first ground ofdetention were not furnift. ed to the detenu so . as to enable him to make an effective representaiion to tho detaining authority, that is to say, a representation 'll'hich en .

being ·accepted may give relief to him. This is not a case in which the groun\l of d'etention contains a bare or bald statement of the con<;lusion to which the detaining authority had come, namely, ! hat it was necessary to pass the order of detention in order to preW,nt the detenu from acting in a manner prejudicial to the interests of pub] ic · order. The first ground of detention with which we are concerned in this appeal, mentions ·each and every one of the material particu- • lars which the respondent was entitled to know in order to te able to make a full and' effective representation against the orci er of detenticn. That gr01! nd mentions the place, date. and time of the alleg<d rr. eeti1ig. describes the occasion on which tl1e meeting \\'as held, that is, the 'Shaheedi Conference'. It mentions the approximate number of persons who were present at the meeting. Finally, it mentici:s 'll'ilh particularity the various statements made by the respondent in his speech..

These particulars mentioned in the grcur:ds of detention comprise tlie entire gamut of facts which it was necessary fer the res- . pondent to know in order to make a well~informed representaticn. The inadequacies from Which the supplementary particulars furnisl:rd to tile respo~dent along with ground No. 1 suffer, cannot affect that position because; they do not introduce any obscurity· in the facts· ·' stated in that ground-or detract from the substance. of the allegations mentioned in that ground. The argument of the respondent that he could not make an effective representation in behalf of ground N~. 1 · because of the inadequacy of data in the partieulars supplied to him, has therefore· to be r_ejected. However, w~ are somewhat surprised that in a matter of this nature, . . PUNJAB v. J. S. TALWANDI (Chandrachud, C. J. ) 61 the detaining authority should have adopted a somewhat casual and unimaginative approach to his task.

· We asked the learned Attorney General to produce before us the original . version of the C. LD. report o( which an extract. was supplied to the respcndent by way of particulars; The original version contains almost evEry one of t)le material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, tH place, the time and the occasion of the meeting. It is this lack of thpughtfulness on the part of the detaining authority which furnished to. the respondent the semblance of ~n argument. This Court has observed in numerous cases that, while passing orders of detenticn, great care must be brought to bear on their task by the detaining authorities: - Preventive detention is a necessary evil but essenti~lly an evil: )hercfore, deprivation of personal Jibhty, if at all, has to be on the strict· terms ~f the Constitution.

Nothing less: We will utter the oftgiven warning yet once more in the hope that the voice of reason will be heard. Shri Hardev Singh contended, in the altematiVe, that the order of detention suffers from a total non-application of mind because, that order could not have been pass. ed onthe basis of 1! 1e C. J. D. report . wnich docs not refer to any cif the facts which are mentioned in . the order of detention. It is und. oubtedly true tliat the case ·of the appellants is that the order of deiention is founded upon the report of the C. I. D. , relating to the speech made by the respondent at the Shaheedi Conference. But the argument of the learned couneel overlooks that what was furnished to the respondent was an extract from the C. J. D. report and not the w)10le of it. However, that has not caused any prejudice to the respondent since the . grounds. and the particulars we. re served upon him simultaneously and ground No.

I mentions every concejvable detail whicl) it was necessary hJ mention in order to enable the respondent to make a proper representation against the . order of detention. . Evidently; the . detaining authority had before it the whole of the C. I. D. report on the basis of which it passed the order of detention. What was omitted from the extract furnished to the respondent was incorpo'rated in ground No. L ·It is therefore not . possible to accept ihc ·argument that the order of detention is bad because the detaining authority did noi apply its mind to the· question as to whether there was material on the basis of which the respondent could be detained. It was further argued by the . ]earned counsel that tbe detaining H. authority should have disclosed the evidence on the basis of which , . • the order of detention . was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention.

There is no substance . in this . contention. ·It is not . the 'law that the evidence gathered by the detaining authority. against the detenu must also be furnished to him,_ · . · foBeni Madhob Shaw v. ,The State of West liengal,'" . it was argued on behalf of the detenu that the details of the activities attributed to him were npt disclosed to him, as ·a resul~ of which his ·right to make . a repr. isentation to the Government was seriously prejudiced. It was hold by fais Court tliat since· the activities forming the grounds ;f · d:itenion woro disclosed to t[1e . detenu in clear terms and since such di~closure furnished adequate information to the detenu to enable hiin to make an elfectiv,e representation against his detention, the lluQ-disclosure of sources of information or the exact words of the . information which formed the foundation of the order at detention could not be complained o( 2 In Har las Dev Singh v.

State of Punjab,' ' it was held that the _conclusions drawn from the available facts constitute 'the grounds' and that the ground must be supplied to the detenu. The Court · observed that the detenu is not entitled to kMw the evidence nor the- source of the information : What must be furnished to hi~ are the grounds of detention and th? particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority. . - In Vakil Singh v. ' State of Jammu and Kashinir,'Zl it was held that since the basic facts, as distinguished from f~ctual details were in~orporat-od in the material whi~h was suppiied to the detenu, nothing more was required to be . fotimated to . him in order to enable him to make an effective representation.

· These cases show that the detenu is not entitled to be infor1'Jed of the sou•·ce of information received against him or the evidence which may have been colle~tcd against him_as, for example, the evi<lence · corroborating that the report of the C. I. D. is true and correct. His right- is to receive every material partici1lar without which a fo\l and (! ) AIR 1973 SC . 2455. (2) [19741 I S. C. R~ 281,'288' (3) AIR 1974 2337, 2341. · }'UNJAB v. J. S. TALWANDI (Chandrachud, C. J. ). 63 ·effective representation canno( be made. If the order of detention refers to or ·tel~es upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu ·as 4eld by this Court in lchhu. Devi Choraria v. Union oflndia. lll That question does not arise here since no such thing is referred to or relied upon . in the first ground of detention, Indeed the furnishing of the C. I. D.

report, of which a truncated extra9t was furnished· to the· respondent, was a sup~rfluous 'exercise in the light of _the facts of the instant case. , . · Shri Hardev Singh relied upon the folloWing passage in the judgment ·in Khudiram in support of his conteniion that the entire ·miterial. which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu : -- "But if the grounds of detention ar. e not communicated to him how can he make an effective representation ? The opportunity of making a representation would l:J~ ren\! ered illusory, The communication of the grounds' of detention is therefore, also int\mded to subservc the purpose of enabling 1 the detcnu to make U)l effec\ive representation .. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvi. ous that the 'grounds' mean alt the . basic .

---( facts and materials which have been taken into account by the detaining uuthority . in making the order of detention and on which, therefore, the order of detention is. based. " ·. These observations cannot be construed as meaning,that the evidence which ,/,as. collected by ! he detaining authority must also be furnished to the detenu. As the very same paragraph of ·th~ judgment at page 839 of the report shows, what was meant was that the basic facfs and th. c material particulars which form. the foundation of the order of detention rriust be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised· of the same, the detenu cannot possibly make an effective representation. ' Shri Hardev Singh found ·serious fault ~i. th the fact that in answer to the writ petition filed by the respondent in the High Court, the counter-affidavit was sworn by Shri K. C.

Mahajan, Deputy Secretary in the Honie Department, of the ·Government of Punjab, and (1) [1981] 1 S. C. R. 640, 6~0. , . . not by the District Magistrate, Ludhiana, who had passed the· order of detention; We are not prepared to dismiss this submission as of no relevance or importance. In matters of a routine nature, if indeed. . there ·are any matters of a routine nature in the field of detention, .. a counter-affidavit may be sworn by a person who derives his knowledge from the record of the case. Howewr, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant f. ats before the CoiJrt which the Court is legitimately entitled to know. In Shaik Hanif v. State of.

West Bengal,' the counter-affidavit on behalf of the State of West Bengal was filed by the· Deputy Secretary (Homo), who verified tlie correctness· of the averments in his affidavit on the basis of the facts contained in the official records. The District Magistrate, who passed the order of detention, did not file his affidavit . and the expl~natioh. which he gave for not doing so was found to be unsatisfactory. Following an earlier judgment in Naranjan Singh v .. State of Madhya Pradesh,2 it was held by this Cou,rt that, in ans~er to a Rule issued in a habeas corpus petition, it is incumbent upon .. the State to satisfy the Court that the detention of the petitioner is legal and is in ·~onformity not only. with the m;rndatory provisions of the Act under which the order of detentio·n is passed but is also in accord with the requirements implicit in Article 22(5) of the Con-' stituti<in. Sarkaria, Jobserved.

on behalf of the Court : "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by. objective standards, J· it is all the more desirable that in response to the Rule Nisi, , the counter-affidavit on behalf of the State should be sworn to by the District Magistrate. · or the authority on whose subjective satisfaction the detention order under s. 3 was passed. · If for. sufficient reason shown to the satisfaction of the Court, the affidavit of the person ,;,ho passed the order. of detentiori under scctioi1 3, cannot be furnished, the counte~.. affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government . Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of bnsiness framed by the Goverrior under Article 166 of the Constitution to pass orders' on behalf of the Government ·in such matt. ers. " (I) [t974J 3. s. c. R: 25s, 262.

(2) AIR 1972 SC 2215. . PUNJAB v~ 1. S. TALWANDI (Chandrachud, C. J. ).. 65. . . After reviewing· certain· other decisions, the Court held . that the failure to furnish tlie ·counter-affidavit of the District Magistrate . who had passed the order of detention, was. an hnpropriety though in most of the cases it nray. not be of niucli consequence, especially jf there was no allegation of malafides against the detaining authority. In the result, the absence of the affidavit of the District Magistrate . was held not to vitiate. the order of detention. In tqjs case too, there are no allegations of. ma/a fides against the District· Magistrate and so, his failure to file a counter-affidavit will not vitiate the order of detention. We cannot, however, leave· this subject without emphasising once 11gain the importante of . the detaining authority filing his ~own affidavit in cases of the ·present · .. _. nature. ·There. are degrees of impropriety and the line which.

divides grave impropriety from illegality is todtthin to draw and' even more so to judge. Conceivably, there can be cases. in which such impr'o; priety arising out of the failure of the detaining authority in filing his own affidavit' may vitiate the order of detention; . Finally, Shri Hardev Singh has cbutenq~d that the respondent was unable to give proper instructio1'! ' to his counsel when the matter was ho;ard by·the Advisory Soard. Counsel says that the respondent . . was transferred from place to place· an. d ultimately, he was produced . before the Advisory 'Board an hour or so· before. the commencement E. , of proceedings before the Board. Thai left no time for hfm to instruct his counsel. We do not see any substance in this. grievance. ·The respondent was . represented by an. advocate. before the Advisory 'Bo;1rd. The learned advocate ·argued the case· of the respondent . along with the cases of two other· d~tenus.

It does not appear that any grievance was made by him that he was not able to 'obtain ioistructions from the respondent so as to be· able to represent bis case effectively before the Advis. ory Board. For these reasons, we allow the appeal and set a·side the judgment of the High Court A• desired by counsel for the respondent, we ramand the· matter to the High Court for disposal of the remaining . coiitentioris raised by the respondent in his Writ Petition. · We would like to take this oppqitunity to point out that' serious ·diffiJnlties arise· on account of the practice increasingly adopted by the High Courts, ofyronouncing the. final order without a reasoned · judgment. It is desirable that the final order which the If4gh Court inte. nds to pass· sh! iuld not be announced until a reasoned judgment • "66 SUPREME COUl\T REPORTS [! 984] 2 S. C. R. is. ready for prorionncement.

Suppose, fot examnle, that a final , order without a reasoned judgment is announced by the High Court that a hous~ shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is 'unconstitutional or, as in the 1nstant case, that a detenu be released frcm detention. Ifthe object of passing such orders is to . ensure speedy •· compliance with. them, that object is more often defeated by the aggrieved party filing a ·special leave petition in this Court against the order passed by the High Court. That places this "court, in a y . predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order lo be implemented. The result inevitably is that the operaticn cf the order passed by. the High Court has. to be stayed pending delivery of the reasoned judgment.

• · It may b~ thought that such orders are passed by this Court . and therefore tl)ere is no reason· why the High Courts should not ·' . do the same. ·We would like to point out r~spectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme·Courtis the fin1l Court in. the hierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are. subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned . statutes. We thought it necessary to make these observations .. in .. order that a- practice which is not very desirable and which achieves no useful purpose may not groiv out. of its present infancy. . . . • . S. R. Appeal allowed qnd Case remanded to the High Court . ' . )- • • •