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DR. RAM MANOHAR LOHIA

v .

STAIE OF BIHAR AND OTHERS

September 7, l 965

[A. K. SARKAR, M. HIDAYATULLAH, RAGHUBAR DAYAL,

J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]

Defence of India Rules, 1962, r. 30(1) (b)-"Public order" and "law

and order", difference between-Scope of rule.

Constitution

of India,

1950, Art. 359(1)-President's Order suspending

rights under A"ts. 21 and 22-Right to move Supreme Court under Art.

32-Efject on.

Rule 30( 1) (b) of the Defence of India Rules, 1962, provided that a

Stat~ Government might, if it was satisfied with respect to a person that

with a view to preventing him from acting in a manner prejudicial, inter

alia to "public safety and maintenance of public order" it is necessary

to do so~ order him to be detained. A Distric~ Magistrate to whom the

power of the Government qf the State of Bihar had been delegated under

s. 40(2) of the Defence of India Act, 1962, ordered the deten:ion of the

petitioner under 'the rule.

The order stated that the District Magistrate was satisfied, that with a

view

to prevent the petitioner from acting in any manner

prejudicial to

the "public safety and the maintenance of law and order," it was neces­

sary to detain him. Prior to the making of the order the District Magis­

trate had, however, recorded a note stating that having read lhe report

of the Police Superintendent that the peti·tioner's being at large was

prejudicial to "public safety and maintenance of public ordt!r'', he \vas

satisfied that the petitioner should be detained under the rule. ~fhe peti­

tioner moved this Court under Art. 32 of the Constitution for a writ of

habeas corpus directing his release from detention, contending that : (i)

though an order of detention to prevent acts prejudicial to public order

may be justifiable an order to prevent acts prejudicial to law and order

would not be justified by the rule; (ii) the order mentioned a notifiootion

which did not contain the necessary delegation;

(iii) the District

Magis­

trate acted beyond his jurisdiction by considering the danger not only

in his district but in the entire State; and (iv) all the conditions mentioned

in the rule must be cumulatively applied

hefore the order of detention

could

be made. The respondent-State

raised a preliminary obJection,

that the President of India had made an Order under Art. 359(1) that the

right

of a person to move any court for the enforcement of the

rights

confe"ed by Arto. 21 and 22 shall remain suspended for the period during

which the proclamation

of emergency under Art. 352 was in force, if

such person had been deprived of any such rights under the Defence of

India Act or any rule made thereunder, and that therefore, this Court was

prevented from entertaining the petition.

HELD: (Per Full Court)

: (i) The petition was maintainable.

Per Sarkar, J. : The order of the President does not form a bar to all

appJications for release from detention under the Act

or the

Ruies. Where

a person was detained

in violation of the mandatory provisions of the

Defence

of India Act his right to move the Court was not suspended.

Since the petitioner contended that the order

of detention

was not justi­

tied bv the Act or Rules and was therefore against the provisions of the

Act, th-, petitioner was entitled to be heard. [716 G; 717 A-Bl

710 IUPUIO COURT REPORTS [1966] I i.C.&

Per Hidayatullah and Bachawat, JJ. : The net result of the President'• A

Order is to stop all claims to enforce rights ansing from Jaws olher than tho

Dolence of India Act and the Rules, and the provisions of Arl. 22 at

variance with the Defence

of India Act and the Rules are of no avail. But

the

deprivauon must be a1 good fallh under the Defence of India Act or any

rule or order made thereunder. The President's Order docs not say that

even if a person is proi..cedc<l aga1n~t in b. each ot the l.)cfcnce of India

Act or the Rules or ma/a fide he cannot move the Court to comploin that

tho Act and the Rules under colour of which some action was taken, do B

not warrant it. It follows, therefore, that this Court acting under Ari. 32

on a petition for th~ issue of a writ of habeas corpus must no~ allow

breaches of lhe Deience of India Act or the Rules to go unquestivned, aa

Art. 359 and the President's Order were not intended to condone an illegiti­

mate enforcement o[ the D::fence of India Act. [731 B, E, F; 733 B-C)

Per Raghubar Dayal, J, : This Court can investigate whether the District

Magistrate exercised the power under r. 30 hones1Jy and bona fide, or not, C

that is, whether he ordered detention on being satisfied

as

required by r. 30.

(748 HJ

Per Mudholkar, J. : Before an entry into the portals of this Court

could be dented to a detenu, he must be shown an order under r. 30(1)

of the Defence of India Rules made by a competent authority stating that

it was satisfied that the de:enu was likely 10 indulge in activi1ies which

would

be prejudicial to one or more of the matters referred to in the rule. D If th-o detenu con'ends that the order, though it purports to be under

r. 30( I), was not competently made, this Court has the duty to enquire

into the matter. Upon an examination of the order, if the Court finds that

it was not competently made or was ambiguous, it must exercise its powen

under Art. 32, entertain the petition thereunder and make an appropriate

order. [755 H; 756 A-Bl

Makhan Singh v. State of Punjab, [1964) 4 S.C.R. 797 followed. :r.

(ii) Per Sarkar, Hidayatullah, Mudholkar and Bachawat JJ. : The peti­

tioner should be set at liberty.

Per Sarkar J. : The order detaining the petitioner would not be in

terms of the rule unless it could be said that the expression "law and order"

means the same thing as "public order''. What was meant by maintenance

of public order was the prevention of disorder of a grave nature, a disorder

which the authorities thought was necessary to prevent in view of the

emergent situation created by external aggression; whereas, the expr~ion

"maintenance of law and order" may mean prevention of disorder of

comparatively lesser gravity and of local significance only. [718 B, D, BJ

Courts arc only entitled to look at the face of the order, bccau~ the

aatisfi.ction which justifies the order under the rule

is the subjective

satis­

faction of the detaining authority. If on its face an order of detention i!

in terms of the rule. ordinarily, a court is hound to stay ils hands and

uphold the order. When an order is on the face of it not in terms of the

rule, a cour' cannot enter into an investigation whether the order of dcten·

tion was in fac! in terms of lhe rule. So the Sta'.e canno! be heard to say

of prove that an order was in fact made 10 prevcn~ ac's prcjud:cial to public

order though the ord~r docs not say so. It io; not a case where the order

is onlv evidence of the de

1eniion having ht!en made under th'! rule. The

order 'is conclu9ive as to the state of !he mind of the per.;on who made it

and no evid~nce is admissible to prove that state of mind. Extraneou.'

evidence such a~ the no'e made by the District Magistrate was not admis.­

sihle to orove that the rule ha~ been complied with. [718 G-H; 718 B-D;

720 G: 722 B-C)

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R. M. LOHIA v. STATE (Sarkar, l.) 711

This is not taking too technical a view, but is a matter of substance.

H a man can be deprived of his liberty under a rule by the simple process

of the making of an order, he can only be so depri>ed if the order is in

terms of the rule. If for the purpose of justifying the detention such com­

pliance by itself is enough, a non-compliance must have a contrary effect

A mere reference in the detention order to the rule is not sufficient to show

that by "law and order" what was meant was public order". [719 F-G;

720 A-CJ

The order no doubt mentions another ground of detention, namely, the

prevention of acts prejudicial to public safety, and in so far as it did so,

it was clearly within the rule. But the order has notwithstanding this,

to

be held illegal, though it mentioned a ground on which a legal order of

detention could have been based, because, it could not be said in what

manner and to what extent the valid and invalid grounds operated on the

mind of the authority concerned and contributed

to the creation of

his

subjective satisfaction. [722 E; G-H]

Shibban Lal Saksena v. State of U.P. [1954] S.C.R. 418, followed.

Per Hidayatullah and Bachawat, JJ. : The satisfaction of the detaining

authority cannot be subjected to objective tests and courts are not to exer­

cise appellat» powers over such authorities and an order proper on its

face, passed by a competent authority in good faith, would

be a complete

answer

to a

petition for a writ of habeas corpus. But when from the order

itself circumstances appear which raise a doubt whether the officer con­

cerned had not misconceiv:d his own powers, there is need ,to pause and

enquire. The enquiry then is, not with a \iew to investigate the suffi­

ciency of the materials but into the officer's notions of his power. If

the order passed by him showed that he thought his powers were more

extensive than they actually were, the order might fail to be a good order.

No doubt, what matters is the substance; but the form discloses the approach

of the detaining authority to the serious question and the error in the form

raises the enquiry about the substance. When the liberty

of the citizen i.s put within the reach of authority and the scrutiny by courts is barred,

the action must comply not only with the substantive requirements of

law but also with those forms which alone can indicate that the substance

h"" been complied with. [739 H; 740 B-C, E; 741 C; Fl

The District Magistrate acted to "maintain law and order" and hi3

order could not be read differently even if there was an affidavit the other

way.

If he thought in terms of

"public order" he should have said so in

his order, or explained bow the error arose. A mere reference to his

earlier note was not sufficient and the two expressions cannot be recon­

ciled by raising an air of similitude between them. The contravention of

law always affect• order but before it can be said to affect public order, it

must affect the community or the public at large. One has to imagine

three concentric circles, the largest representing "law and order~', the next

representing .. public order" and the smallest representing

0

security of

State". An act may affect "law and order" but not "public order," just

as an act may affect "public order" but not "security of the State". There­

fore, by using the expression "maintenance of law and order" the District

Ma~strate was widening his own field of action and was addinv. a clause

to the Defence of India Rules. [740 E-F, H; 746 B-E; 747 D, E]

The order on its face shows two reasons, but it was not certain that the

District Magistrate was influenced by one consideration and not both,

because, it was not open to the Court to enquire into the material on which

the Di~trict Magistrate acted. or to examine the reasons to see whether

hi• action fell within the other topic, namely, public safety. [746 F-G]

712 SUPllEMB OOllllT llEPORTS [1966] l s.c I<.

J'er Mudholkar J.: The use of the expression "maiolenance of law A

and order" in the in1pugncd order makes Jt ambiguous on iLs Lice and

therefore the order mus. uc held lo b..: bad. No doubt the order also

refers lo pul>J1c safety. llu-l then the qucs:ions arjs·~: What is it that

weighed wuh I.be Dis[rict Magbtralc, U1c apprehension r~garding public

safety or an apprehension regarding mainten~nce of la\v and order?

Was the apprehension entertained by the Dislrict lviagistratc that tho

petitioner, if left at large, v.·as likely to do something which will in1pcril

the mainJenance of public order generally, or was it that he apprehended B

that the petitioner's activities may cause di~lurbanccs in a particular Joc;.dilv?

His order, which was the only matcri<1l which could be considered, g:lve

no indication on th09C que::iLions. ·J"ltc cxpr·.::,~ion .. J<.iw <tnd order" docs

not find any place in the rule and is not synonymous wilh "putlic order".

"Law and order" is a comprehensive expression in which wool<l be included

DO! merely public order but mat1ers such as public peace, ira11'1uilliLy,

orderliness in a locality or a local area and pcrhap• olher mailers. [756 H; C

757

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Pu Ragbubar Dayal J. (dissenting): The District Magistrale made the

impugned

order on his being

satisfied that it was necessary to do so \vith

a view to prevent the petitioner from acting in a manner prejudici:il to

public safety and maintenance of public order. The in1pugncd order was

therefore valid and consequently, the petitioner could not move t!1is Court

for the enforcement of his rights under Arts. 21 and :!2 in vie"'· of the

President's Order under A!I . .J59( I). L 755 B-CJ D

The detaining au:hori-:y is free tu c fahlish tha~ any defect in the

detention order

is of forn1 only

and 1101 of ~ubs'.ancc, i! being sat!..,fi..!J of

the necessity lo detain the person for a purpose mentioned in r. 30, though

the purpose has been inaccurately s~ate<l in the detention order. ·111e

existence of salisfaction does not depend on \'har is stared in 1hc order

and can

be

e;lablishcd by the District Magis:rate by his aftidaviJ. His

omi98ion to refer to "maintenance of public order" docs not mc;in that E

be was not so satisfied, especially when his no1e refers to lhc pc!itioner

being at large lo he prejudicial to public safc~y and 1hc 1naintcnance of

public order. The pe?itio:.e;·'s affidavit and rejoinder sho\v lhJt 1hc J)is­

trict Magislrate was SJ.tisfied of the necc')sity of detaining the pc1ili-Jncr to

prevent him from acting in a manner prejudicial to rhe public order,

because of the setting of events that happened on that date. "Mainten­

ance of law and order" may be an expression of wider import than "publlo

order", but in the context 1n \hi1.:h i: \~:1'> use:! i'1 the detention order and i'

in view of its use gener<?llV, it should he cono;1rued to mean mainten:1nce of

law and order in regard 10 maintenance of public tranquillity. (749 C-D;

750 C-D; 751 C, F-Gl

Sodhi S/wmshu Singh v. State <>I Pepsu, A.LR. I 954 S.C. 276, referred

to.

Even if tho exprcs'iion "maintenance of law and order" in the impugned

order be not construed as referring to ''maintenance of puhlic ('trder .. the

impugned order cannot be said to be invcilid in view of its being made

with a double objective, that

is, with the

ohje:t of preventing the petitioner

from acting prejudicially to the public safety and the maintenance

of law

and

order. His satisfaction with respect to anv of the purposes mentioned

in r. 30( I) which would justify his ordering the detention of a person i•

sufficient for the validity of the order. There i.o; no room for ..:on51dering

that he miJ~ht not have passed the order merely with one object in view.

the object being to prevent him from acting prejudicially to public <afety.

It is not a case where his satisfaction \Vas based on two grounds one of

which is irrelevant or non-existent. There docs not appear to he any

re."l.SOn why rhe Dio;;trict :1r,istra1c 1,i,1ouid not h;ive paso;;cd the order of

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R. M. LOIDA v. STATE (Sarkar, J.) 713

A dctenlion against the petitioner on the satisfaction that it was necessary to

prevent him from actrng prejudicially to public safety. [752 H; 753 B-D;

754 A-Bl

(iii) Per Sarkar, Hidayatullah, Raghubar Dayal and Bachawat, JJ. :

The delegation was valid.

Per Sarkar J. : In spite of the mistake in the order as to the Notification

delegating the power, evidence could

be given to show that the delegation B had in fact been made, because, the mistake did not vitiate the order. To

admit such evidence would not be going behind the face of the order,

becaUBe, what is necessary to appear on the face of the order is the satis­

faction of the Authority of the necessity for detention for any of the

reasons mentioned in r. 30(1)(b), and not his authority to make the

order.

[721 D, F-G]

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Per Hidayatullah, Raghubar Dayal and Bachawat JJ. : There was only

a clerical error in mentioning the wrong notification and being a venial

fault did not vitiate the order

of detention. Also, s.

40 ( 2) does not

require the imposition of any conditions but only permits it. [737

F; 738 A;

741 G; 748

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(iv) Per Hidayatullah, Raghubar Dayal and Baohawat, JJ.: There was

nothing \Vrong in the District Magistrate taking a broad view of the peti~

tioner's activities so as to weigh the possible harm if he was not detained.

Such a viewing of tbe activities. of a ~rson before passing the order

against him does not necessarily spell

out extra-territoriality. but is really

designed

to assess properly the potentiality of danger which is the main

obj<!ct of •he rule to prevent. [737 G-H; 748 DJ

(v) Per Hidayatullah, Raghubar Dayal, Mudholkar and Bachawat, JJ. :

It is not necessary that the appropriate authority should entertain an appre­

hension that the person to be detained is likely to participate in every one

of the activities referred to in the rule. [739 F; 748 D; 756 Fl

ORIGINAL JURISDICTION : Writ Petition No. 79 of 1965.

Petition under Art. 32 of the Constitution of India for enforce­

ment of Fundamental Rights.

The petitioner appeared

in person. F A. V. Viswanatha Sastri and S. P. Varma, for the respondents.

Sarkar

J., Hidayatullah J. (on behalf of himself and Bachawat

J.) and Mudholkar J. delivered separate concurring Judgments.

Raghubar Dayal

J. delivered a dissenting Opinion.

Sarkar,

J. Dr. Ram Manohar Lohia, a member of the Lok

G

Sabha, has moved the Court under Art. 32 of the Constitution

for a writ of

habeas corpus directing his release from detention

under an order passed

by the District Magistrate of Patna. The

order

was purported to have been made under r.

30<1) (b) of the

Defence of India Rules, 1962.

H

Dr. Lohia, who argued his case in person, based his claim to

be released on a number of grounds. I do not propose to deal

with

all these grounds for I have come to the conclusion that he

is entitled to be released on one of them and to the discussion of

714 SUPllBIO COU1T llBPOR.TS [1966] 1 S.C.R.

that ground alone I will confine my judgment. With regard to his A

other grounds I will content myself only with the observation that

as at present advised, I have not been impressed

by them.

The order of detention runs thus :

"Whereas I, J. N. Sahu,

District Magistrate, Patna, am satisfied ........ that with a view

to preventing him from acting

in any manner prejudicial to the

II

public safety and the maintenance of law and order, it is necessary

to make an order that he be detained. Now, therefore, in exercise

of the powers conferred

by clause

<b) of sub-rule ( 1) of rule 30

of the Defence of India Rules, 1962 read with Notification No.

!80/CW ............ I hereby direct that .......... Dr. Ram

Manohar Lohia be arrested

........ and detained in the Central c

Jail Hazaribagh, until further orders." Now the point made by

D1. Lohia is that this order is not in terms of the rule under which

it purports to have been made

and, therefore, furnishes no legal

justification for detention. The reason why it

is said that the

order is not in tenns of the rule

is that the rule does not justify the

detention of a person to prevent him from acting in a manner

pre-D

judicial to the maintenance of law and order while the order

directs detention for such purpose. It is admitted that the rule

provides for an order of detention being made to prevent acts

prejudicial to the maintenance of public order, but it is said that

public order and law and order are not the same thing. and,

therefore, though an order of detention to prevent acts prejudicial

to public order might be justifiable, a similar order to prevent

acts prejudicial to law and order would not be justified by the

rule.

It seems to me that this contention is well founded.

Before proceeding to

state my reasons for this view, I have to F

dispose of an argument

in bar advanced by the respondent

State.

That argument is that the petitioner has, in view of a certain order

of the President to which I will presently refer, no right to move

the Court under Art. 32 for his release. It

is said that we

can­

not, therefore, hear Dr. Lohia's application at all. To appreciate

this contention, certain facts have to be stated and I proceed to G

do so at once.

Article 352 of

t.he Constitution

gives the President of India

a power to declare

by Proclamation

that a grave emer1?ency exist.I;

whereby the security of India is threatened inter a/ia by external

aggression. On October 26, 1962, the President issued a Procla-

11

mation under this article that such an emergency existed. Thi~

presumably was done in view of China's attack on the north eastern

frontiers

of India in September 1962.

On the same day as the

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R. M. LOHIA v. STATE (Sarkar, I.) 715

Proclamation was made, the President passed the Defence of India

Ordinance and rules were then made thereunder on November

5,

1962. The Ordinance was later, on December 12, 1962, replaced

by the Defence

of India Act, 1962 which however continued in

force the rules made under the Ordinance.

On November 3, 1962,

the President made an order under Art. 359 ( 1) which

he was

entitled to do, declaring

"that the right of any person to move any

court for the enforcement of the rights conferred by article 21

and article 22 of the Constitution shall remain suspended for the

period during which the Proclamation

........ is in force, if such

person has been deprived of any such rights under the Defence of

India Ordinance, 1962 or any rule or order made thereunder."

There

is no doubt that the reference in this

Order to the "Defence

of India Ordinance, 1962" must, after that Ordinance was replaced

by the Act,

as earlier stated, be understood as a reference to the

Act :

see Mohan Chowdhury v. The Chief Commissioner,

Tripura (

1

). I should now state that the Proclamation is still

in force.

It is not in dispute that the present petition has been made for

the enforcement of Dr. Lohia's right to personal liberty under Arts.

21 and 22. These articles in substance-and it should suffice for

the present purpose to say no

more-give people a certain personal

liberty.

It is said by the respondent

State that the President's

Order under Art. 359 (1) altogether prevents us from entertaining

Dr. Lohia's petition and, therefore, it should

be thrown out at

once. This would no doubt, subject to certain exceptions to which

a reference

is not necessary for the purposes of the present judg­

ment, be correct if the

Order of November 3, 1962 took away

all rights to personal liberty under Arts.

21 and 22. But this,

the

Order does not do. It deprives a person of his right to move

a court for the enforcement of a right to such personal liberty only

when he has been deprived of it by the Defence of India Act-it

is not necessary to refer to the Ordinance any more as it has been

replaced

by the Act--or any rule or order made thereunder. If

he has not been so deprived, the

Order does not take away his

right

to move a court. Thus if a person is detained under the

Preventive Detention Act,

1950, his right to move the Court for

enforcement of his rights under Arts.

21 and 22 remains intact.

That

is not a case in which his right to do so can be said to have

been taken

away by the President's Order. This Court has in

fact heard applications under Art. 32 challenging a detention under

(1) [1964] 3

S.C.R. 442.

716 SUPlll!MB COUllT REPORTS

(1966) I S.C.ll.

that Act : see Rameshwar Shaw v. District Magistrate of Burd-A

wan('). If any person says, as Dr. Lohia does, that he has been

deprived of his personal liberty by an order not made under the

Act

or the

Rule~. there is nothing in the President's Order under

Art. 359( I) to deprive him of his right to move the Court under

Art. 32.

The

Court must examine his contention and decide

whether he has b:cn detained under the Act or the Rules and can B

only throw out his petition when it finds that he was so detained,

but not before then.

If it finds that he was not so detained, it

must proceed to hear his petition on its merits. The right

under

Ari. 32 is one of the fundamental rights that the Constitution has

guaranteed to all persons and it cannot be taken away except by C

the methods as provided in the Constitution, one of which is by

an order made ur.der Art. 359. The contention that an order

under that article has not taken away the constitutional right to

personal liberty must be examined.

Mr. Verma said that

Smith v.

East F.l/oe Rural District Coun­

ri/(2) supported the contention of the respondent State. I do not

think so.

That case turned on an entirely

difforent statute. That

statute provided n method of challenging a certain order by which

property was comnulsorily purchased and stated that it could not

be questioned in any other way at all. It was there held that an

action to set aside the order even on the ground of havin!! been

made ma/a fide, did not lie as under the provision no acfion was

maintainable for the r1urrose. That case is of no assistance in

deciding the question in what c;rcumstance a right to move the

court has been taken away by the entirely different provisions that

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we have to consider. Herc only a right to move a court in certain

circumstances has been taken away and the question is, has the F

court been moved

on the present occasion in one of those circum­

stances ? The President's Order does not bar an enquiry into that

question.

Apart from the fact that the reasoning on which the

English case

is

ba~ed, has no aonlication here, we have clear

observations

in judgments of this

Court which show that the Order

of the President does not form a bar to all applications for release

from detention under the Act

or the Rules. I will refer only to

one of them. Tn Makhan

Singh v. The State of Punjab(') it was

said, "If in challenging the validity of his detention order, rhe

detenu

is

pleading any right outside the rights specified in the

Order, his right to move any court in that behalf is not ~us.oended"

G

and by way

of illustration

of this proposition. a case where a II

(I) [1964) 4 S.C.R. 921. (2) [1956) L.R. A.C. 7'6.

(3) (1964) 4 S.CR. 797.

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R. M. LOHIA v. STATE (Sarkar, J.) 717

person was detained in violation of the mandatory vrovisions of

the Defence of India Act was mentioned.

That is the present case

as the petitioner contends that the order of detention

is not justified

by the Act or Rules and hence

is against its provisions. The

petitioner

is entitled to be heard and the present contention of the

respondent

State must be held to be ill founded and must fail.

I now proceed to consider the merits of Dr. Lohia's contention

that the Order detaining him had not been made under the Defence

of India Rules. I here pause to observe that if it

was not so made,

there

is no other justification for his detention; none is indeed

advanced. He would then be entitled

to his release.

I have already stated that the Proclamation of Emergency

was

made as the security of India was threatened by external aggres­

sion. That Proclamation of emergency was the justification for

the Act. The Act in fact recited the Proclamation in its pream­

ble.

Section 3 of the Act gave the Central Government power to

make rules providing for the detention of persons without trial

for various reasons there mentioned. Rule 30( 1) Cb) under which

the order of detention of Dr. Lohia was made

was framed under

s. 3 and is in these terms :

"The Central Government or the State

Government, if it is satisfied with respect to any particular person

that with a

view to preventing him from acting in any manner

prejudicial to the defence of India and civil defence, the public

safety, the maintenance of public order, India's relations with

foreign powers, the maintenance of peaceful conditions in any part

of India, the

efficient conduct of military operations or tl>.e main­

tenance of supplies and services essential to the life of the commu-

nity, it

is necessary to do so, may make an order-(a) ....... .

(b) directing that he be

detained." As I have said earlier, the

order

was made by the District Magistrate,

Patna, to whom the

power of the Government of the State of Bihar in this regard had

been duly delegated under s. 40(2) of the Act.

Under this rule a Government can make an order of detention

against a person if it is satisfied that it

is necessary to do so to

prevent him from acting in a manner prejudicial, among other

things, to public safety and the maintenance of public order.

The detention order in this case

is based on the ground that it

was necessary to make it to prevent Dr. Lohia from acting

in any

manner prejudicial to public safety and the maintenance of law

and order. I will, in discussing the contention of Dr. Lohia,

proceed on the basis as if the order directing detention

was only

for preventing him from acting in a manner prejudicial to the

718 SUPllEME C:OUR.T REPOllTS (1966) 1 S.C.R.

maintenance of law and order. I will consider what effect the A

inclusion in the order of detention of a reference to the necessity

for maintaining public safety has, later. The question

is whether

an order could be made legally under the rule for preventing

disturbance of law and order. The rule does not say so. The

order, therefore, would not

be in terms of the rule unless it could

be said that the expression

"law and order" means the same thing B

as "public order" which occurs in the rule. Could that then

be said ? I find no reason to think so. Many of the things

mentioned in the rule may in a general sense be referable to the

necessity for maintaining law and order. But

the rule advisedly

does not

use that expression.

c

It is commonplace that words in a statutory provision take

their meaning from the context in which they are used. The

context in the present case is the emergent situation created by

external aggression. It would, therefore, be legitimate to hold

that by maintenance of public order what

was meant was

pre­

vention of disorder of a grave nature, a disorder which the D

authorities thought

was necessary to prevent in view of the

emergent situation. It

is conceivable that the expression

"main­

tenance of Jaw and order" occurring in the detention order may

not have been used in the sense of prevention of disorder

of a

grave nature.

The expression may mean prevention of disorder

of comparatively lesser gravity and of local significance only.

To

E

take an illustration, if people indulging in the Hindu religious

festivity of Holi become rowdy, prevention of that disturbance

may be called the maintenance of law and order. Such main­

tenance of law and order wa~ obviously not in the contemplation

of the Rules.

F

What the Magistrate making the order exactly had in mind.

by the use of the words law and order, we do not know. Indeed,

we are not entitled to know that for it is well-settled that courts

cannot enquire into the grounds on which the Government

thought that it was satisfied that it was neces.~ary to make an

order of detention. Courts are only entitled to look at the face G

of the order. This

was stressed on us by learned counsel for

the respondent

State and the authorities fully justify that view.

If. therefore, on its face an order of detention is in terms of the

rule, a court

is bound to stay its hands and uphold the order. I

am leaving here out of consideration a

contention that an order

good on the face of it

is bad for reasons dehors it, for example,

11

because it had been made ma/a fide. Subject to this and other

similar exceptions--to which I have earlier referred and as to

•

·•

•

'

•

A

B

R. M. LOHIA v. STATE (Sarkar, J.)

which it is unnecessary to say anything in the present context

and

also because the matter has already been examined by this

Court in a number of

cases-a court cannot go behind the face

of the order of detention to determine its validity.

c

The satisfaction of the Government which justifies the order

under the rule is a subjective satisfaction. A court cannot

enquire whether grounds existed which would have created that

satisfaction on

which alone the order could have been made in

the

mind of a reasonable person. If that is so,-and that indeed

is what the respondent

State contends,-it seems to me that when

an order

is on the face of it not in terms of the rule, a court

cannot equally enter into an investigation whether the order

of

detention was in fact, that is to say, irrespective of what is stated

in it, in terms

of the rule. In other words, in such a case the

State cannot

be heard to say or prove that the order was in fact

made, for example, to prevent acts prejudicial

to public order

which

would bring it within the rule though the order does not

say so. To allow that to be done would be to uphold a deten­

tion without a proper order. The rule does not envisage such a

situation. The statements in the affidavit

used in the present case

by the respondent

State are, therefore, of no avail for establish­

ing that

the order of detention is in terms of the rule. The

deten­

tion was not under the affidavit but under the order. It is of

some significance to point out that the affidavit sworn by the

District Magistrate

who made the order of detention does not say

that by the use of the expression law and order he meant public

order.

D

E

F

It was said that this was too technical a view of the matter;

there

was no charm in words used. I am not persuaded by this

argument. The question

is of substance. If a man can be

deprived of

his liberty under a rule by the simple process of the

making of a certain order, he can

only be so deprived if the

order is in terms of the rule. Strict compliance with the letter

of the rule is the essence of the matter. We are dealing with a

G statute which drastically interferes with the personal liberty of

people, we are dealing with an order behind the face of which a

court is prevented from

going. I am not complaining of that.

Circumstances

may make it necessary. But it would be legiti­

mate to require in such cases strict observancei of the rules. If

H

there is any doubt whether the rules have been strictly observed,

that doubt

must be resolved in favour of the detenu. It is

cer­

tainly more than doubtful whether law and order means the same

as public order. I am not impressed by the argument that the

720 SUPREMB COUllT RBPORTS (1966] I S.C.ll.

reference in the detention order to r. 30 (I )(b) shows that by

law and order what was meant was public order. That is a most

mischievous way of approaching the question. If that were

right, a reference to the rule in the order might equally justify all

other errors in it. Indeed it might with almost equal justifica·

tion then be said that a reference to the rule and an order of

detention would be enough. That being so, the only course open

to

us is to hold that the rules have not been strictly observed.

If for the purpose of justifying the detention such compliance by

itself

is enough, a

non-compliance must have a contrary effect.

A

B

Carltona Ltd. v. Commissioners of Works(') is an interesting

case to which reference may

be made in this connection. It turned C

on a statutory Regulation empowering a specified authority to take possession of land for the purposes mentioned in it in

various terms but which renns did not include the expres.sion

"national interest". Under this Regulation possession of cenain

premises of the C'arltona Company was t:iken after serving a

notice on

it that that was being done

"in the national interest".

D

It was contended by the Carltona Comcany that it had been

illegally deprived of the possession of its premises because the

notice showed that that possession

was not

heing taken in terms

of the Regularion. This contention failed

as it

was held that •he

giving of the notice wa< nnt a pre-rcqui~ik to the exercise of the E

powers under the Regulation and that the notice was '10 more

than a notification that the authorities were exercising the powen.

It was said that the notice was useful only as evidence of the

state of the mind of the writer and, that being so, other evidence

was admissible to establish the fact that the possession of the

premises was being taken for the reasons mentioned

in the

Regu­

lation. Our case is entirely different. It is not a case of a

notice. Under r. 30(1 )(b) a person can he detained only by

an order and there

is no doubt that the order of detention has to

be in writing.

It is not a case where the order is

only evidence

F

of the detention having been made under the rule. It is the

only warrant for the detention. The order funher

is conclusive G

as to the state of the mind of the person who made it; no evidence

is admissible to prove that state of mind.

It seems to me that

if the

Car/tona case was concerned with an order which alone

resulted in the dispossession. the decision

in that case might well

have been otherwise. I would here remind. to prevent any

possible misconception, that I

am not considering a case where H

(!) (!943( 2 All E.R. ~60.

•

•

•

,

'

R. M. LOIDA v. STATE (Sarkar, J.) 721

A the order is challenged on the ground of mala fides or other

similar grounds to which I have earlier referred.

B

c

D

E

F

Before leaving this aspect of the case, it is necessary to refer

to

two other things. The first is a mistake appearing in the

order of detention on which some argument

was based by Dr.

Lohia for quashing the order.

It will be remembered that the

order mentioned a certain Notification

No. 180/CW. The Noti­

fication intended to be mentioned however

was one No. 1115/CW

and the Notification

No. 180/CW had

been mentioned by

mistake.

It was under Notification No. 1115/CW that the power

of the State Government to make an order of detention

was

delegated to the District Magistrate under the provisions of

s. 40(2) of the Act to which I have earlier referred. The refer­

ence to the notification

was to indicate the delegation of power.

The Notification actually mentioned in the order did not, however,

contain the necessary delegation. The result

was that the order

did not

show on its face that the District Magistrate who had

made it had the necessary authority to do

so. This mistake

however did not vitiate the order at

all. Nothing in the rules

requires that an order of detention should state that the authority

making it has the power to do

so. It may be that an order made

by an authority to whom the Government's power has

not been

delegated, is a nullity and the order can be challenged on that

ground. This

may be one of the cases where an order good on

its face

may nonetheless be illegal. When the power of the person

making the order

is challenged, the only fact

to be proved is

that tbe power to make the oraer had been duly delegated

to

him. That can be proved by the necessary evidence, that

IS,

by the production of the order of delegation. That would be a

case somewhat like the

Carltona case. In spite of the mistake

in the order as to the Notification delegating the power, evidence

can be

given to show that the delegation had in tact been made.

To admit such evidence would not

be going behind the face of

the order because what is necessary to appear on the face of the

6

order is the satisfaction of tbe authority of the necessity for the

detention for any of the reasons mentioned

in r.

30( 1) (b) and not

the authority of the maker of the order.

The second thing to which I

wish to refer is that it appeared

from the affidavit sworn

by the District Magistrate that prior

to the making

of the order, he had recorded a note which ra1i

H in these words :

"Perused the report of the Senior S. P. Patna for

detention of Dr. Ram Manohar Lohia, M.P. under rule 30(1)(b)

of the Defence of India Rules, on the ground that his being at

L8Sup. C. 1./65-3

722 SUPllEMB COU1T UPORTS

(1966) I S.C.R.

large is prejudicial to the public safety and maintenance of public A

order. From the report of the Sr. S. P., Patna, I am satisfied

that Dr. Ram Manohar Lohia, M.P. aforesaid be detained under

rule 30(1)Cb) of the Defence of India Rules. Accordingly, I

order that Dr. Ram Manohar Lohia be detained

........

" I

am unable to see that this note

is of any assistance to the respon­

dent

State in this case. It is not the order of detention. The

8

respondent State does not say that it is. I have earlier stated

that extraneous evidence

is not admissible to prove that the

rule

has been complied with though the order of detention does not

show that. Indeed, this note does not even say that the District

Magistrate was satisfied that it was necessary to make an order

of detention to prevent Dr. Lohia from acting in a manner

prt> c

judicial to the maintenance of public order. It only says that the

Superintendent of Police reported that he

was so satisfied. The

satisfaction of the Superintendent of

Police would provide no

warrant for the detention or the order; with it we have nothing

to do.

For these reasons, in

my view, the detention order if it had

been based only on the ground of prevention of acts prejudicial

to the maintenance of

law and order, it would not haTe been

in terms of

r.

30( I )(b) and would not have justified the deten-

D

tion. As I have earlier pointed out, however, it also mention< E

as another ground for detention, the prevention of acts prejudicial

to public safety. In

so far

as it does so, it is clearly within the

rule. Without more, we have to accept an order inade on that

ground as a perfectly legal order. The result then is that the

detention order mentions two grounds one of which is in terms of

the rule while the other is not. What then is the effect of that ?

Does it cure the illegality in the order that I have earlier noticed 7

This question

is clearly

~ettled by authorities. Jn Shifiban Lal

Saksena v. The State of Uttar Pradl'sh(') it was held that such

an order would

be a bad order. the reason being that it could

not be said in what manner and to what extent the

valid and

invalid grounds operated on the mind of the authority concerned

and contributed to the creation of his subjective satisfaction which

formed the basis of the order. Th~ order has. therefore. to be

held illegal though it mentioned a ground on which a legal order

of detention could have been baSl'd. I should also point out that

••

G

the District Magistrate has not said in his affidavit that he would H

have been satisfied of the necessity of the detention order only

-------··--

(I) [1954) S.C.R. 418.

I

•

'

•

R. M. LOHIA v. STATE (Hidayatu//ah, J.) 723

A for the reason that it was necessary to detain Dr. Lohia to pre­

vent him from acting in a manner prejudicial to public safety.

B

In the result, in my view, the detentfon order is not under the

Rules. The detention of Dr. Lohia under that order is not

legal and cannot be justified.

He is entitled to be set at liberty

and

I would order accordingly.

Hidayatullah,

J. Dr. Ram Manohar Lohia,

M.P., has filed this

petition under Art. 32 of the Constitution asking for a writ of

habeas corpus for release from detention ordered by the District

Magistrate, Patna, under Rule 30(1 )(b) of the Defence of India

Rules, 1962.

He was arrested at

Patna on the night between 9th

C: and 10th August, 1965. As it will be necessary to refer to the

terms of the order served on

him it is reproduced here :

E

F

G

"ORDER

No. 3912C. Dated, Patna, the 9th August 1965

Whereas

I, J. N. Sahu, District Magistrate,

Patna,

am satisfied with respect to the person known as Dr. Ram

Manohar Lohia, Circuit House, Patna, that with a view

to preventing him from acting in any manner prejudicial

to the public safety and the maintenance of law

and

order, it is necessary to make an order that

he be

detained.

Now, therefore,

in exercise of the powers conferred

by clause

(b) of sub-clause (i) of rule

30 of the Defence

of India Rules, 1962, read with Notification No. 180/

CW, dated the 20th March, 1964, of the Government of

Bihar, Political (Special) Department, I hereby direct

that the said Dr.

Ram Manohar Lohia be arrested by the

police wherever found and detained

in the Central Jail,

Hazaribagh, until further orders.

Sd/-J. N. Sahu,

9-8-1965

District Magistrate, Patna.

Sd/-Ram Manohar Lohia.

10th August-1.40."

Dr. Lohia was lodged in the Hazaribagh Central Jail 'lit 3-30 p.m.

on August IO, 1965. He sent a letter in Hindi together with an

H affidavit sworn in the jail to the Chief Justice, which was received

on August 13, 1965, in the Registry of this Court. Although the

petition was somewhat irregular, this Court issued a rule and as

724 SUPREME COURT REPORTS

[1~66] I S.C'.R.

no objection has been taken on the ground of form we say nothing A

more about it.

In his affidavit Dr. Lohia stated that he was arrested at mid­

night on August 9, 1965 and was told that it was on charges of

arson but later was served with the order of detention and that in

this way his arrest for a substantive offence was turned into pre-B

ventive detention~ He further stated that the order of detention

showed that

he was to be detained in Bankipur Jail but the

n?me

of .the Jail was ~cored out and "Central Jail, Hazaribagh" was

aubstituted which led him to conclude that typed orders of deten­

tion were kept ready and that the District Magistrate did not

exercise his mind in each individual case.

He contended that his C

detention under Rule

30 (1) (b) was illegal because, according to

him, that rule dealt with prejudicial activities in relation to the

defence of India and civil defence and not with maintenance of

law and ·order of a purely local character. He alleged that the

arrest. was mala fide and malicious; that it was made to prevent

him from participating in the House of the People which was to D

go intp Session from August 16 and particularly to keep him away

from. the. debate on the Kutch Issue. He further alleged that he

had 00;ly addressed a very large gathering in l?atna and had dis­

closed certain things about thf! Bihar Government which incensed

that Government and caused th~m to retaliate in this manner and

that detention was made to prevent further disclosures by him. ·E

In answer to Dr. Lohia's affidavit two affidavits were filed on

behalf of the respondents. One affidavit, filed by the District

Magistrate, Patna, denied .that there was any malice

or ma/a {ides

in the arrest of Dr. Lohia. The District Magistrate stated that

he had received a report from the Senior Superintendent of

Police, F

Patna, in regard to the conduct and activities of Dr. Lohia and

after considering the report he had ordered Dr. Lohia's detention

to prevent him from acting in any manner prejudicial to the public

llllfety and maintenance of public order. He stated further that

he was fully satisfied that ths forces of disorder "which were sought

to be let loose if not properly controlled would envelop the whole

of the· State of Bihar and possibly might spread in other parts of

the country which would necessarily affect the problem of external

defence.

as well in more ways thah

one". He said that the report

G

of' ~e Senior Superintendent o~ Police, Patna, contained facts

which he considered sufficient fdr taking the said action

but he could not disclose the contents of that report in the public interest. H

He sought to c;:orrect, what he called, a slip in the order passed by

hilil, by stating that notification No. l 1155C, dated 11th August

I

....

•

A

B

R. M. LORIA v. STATE (Hidayatullah, J.) 725

1964, was meant instead of the notification mentioned there. He

stated further that

as the disturbance was on a very

large scale

it was thought expedient to keep ready typed copies of detention

orders and to make necessary alterations in them to suit individual

cases, at the time of the actual issuance of the orders, and that it

was because of this that the words

"Central Jail Hazaribagh" were

substituted for "Bankipur Jail". He denied that he had not con­

sidered the

-necessity of detention in each individual case. He

repudiated

the charge that the arrest was made at the instance of

Government and affirmed that the action was taken on his own

responsibility and in the discharge of his duty as District Magistrate

and not in consultation with the Central or the State Governments.

C He denied that the arrest and detention were the result of anger

on the part of any or a desire to prevent Dr. Lohia from circulating

any damaging information about Government. The District Magis­

trate produced an order which, he said, was recorded before the

order of detention. As

we shall refer to that order

later it is

D

E

F

G

H

reproduced here :

"9.8.65.

Perused the report of the Senior S.P., Patna, for

detention of Dr. Ram Manohar Lohia, M.P., under rule

30(1) (b) of the Defence of India Rules, on the ground

that his being at large

is prejudicial to the public safety

and maintenance of public order. From the report of

the

Sr. S.P., Patna, I am satisfied that Dr. Ram Manohar

Lohia, M.P., aforesaid be detained under rule 30(l)(b)

of the Defence of India Rules. Accordingly, I order that

Dr. Ram Manohar Lohia

be detained under rule

30(l)(b) of the Defence of India Rules read with Notifi­

cation No. 180/CW dated 20.3.64 in the Hazaribagh

Central Jail until further orders.

Send four copies of the warrant of arrest to the Sr.

S.P., Patna, for immediate compliance. He should return

two copies of it after service on the detenu.

Sd/-J. N. Sahu,

District Magistrate, Patna".

The second affidavit was sworn by Rajpati Singh, Police Inspec­

tor attached to the Kotwali Police Station, Patna. He stated in his

affidavit that the order was served on Dr. Lohia at 1-40 A.M. on

August 10, 1965 and not at midnight. He denied that Dr. Lohia

was arrested earlier or that at the time of

his arrest, he was informed

726 SUP.UMJI COUIT REPORTS

(1966) l S.C.R.

tliat the arrest was for an offence or offences of arson. He A

admitted, however, that he had told him that cases of arson and

loot

had taken place. He affinned that there was no charge of arson aga~t Dr. Lohia.

Dr. Lohia filed a rejoinder affidavit and

in that affidavit he

stated that the internal evidence furnished by the order taken with B

the counter affidavits disclosed that

his arrest and detention were

patently illegal. He pointed out that while Rule

30(1 )(b) pro­

vided that detention could be made for the maintenance of public

order, the order stated that Dr. Lohia was arrested for maintenance

of law and order. He characterised the counter affidavits as full

of lies and narrated other facts intending to show that there was a

c

conspiracy to seal his mouth so that disclosures against the Bihar

Government might not be made. This represents the material on

which the

p_rescnt petition is based or opposed.

The petition was argued by Dr. Lohia in person though he was

receiving assistance in constructing

his arguments. His contentions

are that he is not being detained under the Defence of India Rules

but arbitrarily; that even if he

is being detained under the said

Rules the law has been flagrantly

violated; that the order passed

against him

is ma/a fide; and that the District Magistrate did not

exercise the delegated power but went outside it in various ways rendering detention illegal.

On behalf of the State a preliminary objection is raised that

the application itself is incompetent and that by the operation of

Art. 359 read with the President's Order issued under that Article

on November 3, 1962, Dr. Lohia's right to move the Supreme

Court under Art. 32 of the Constitution

is taken away during the

period of emergency proclaimed under Art.

352 as long as the

President's Order continues. On merits it is contended on behalf

of the State of Bihar that the petition, if not barred, docs not make

out a case against the legality of the detention; that this Court

cannot consider the question of good faith and that the only

enquiry open to this Court is whether there is or is not an order

under Rule 30(1

)(b) of the

D~fence of India Rules 1962. If this

Court finds that there

is such an order the enquiry is closed because

the petition must then be considered

as incompetent. The

State

Government admits that the words of Rule 30( I )(b) and s. 3 of

the Defence of India Act were not used

in the order of detention

but contends that maintenance of public order and maintenance

of law and order do not indicate different things and that the area covered by maintenance of law and order is the same if not smaller

than the area covered by the expression maintenance of public

D

E

G

H

J

-

-

R. M. LOHIA v. STATE (Hidayatullah, J.) 727

A order. We shall go into the last contention more elaborately after

dealing with the preliminary objection.

Questions about the right of persons detained under the

Defence of India Rules to

move the Court have come up frequently

before

this Court and many of the arguments which are raised here

B have already been considered in a series of

cases. For example,

it has been ruled in

Mohan Choudhury v.

Chief Commissioner,

Tripura(')

that the right of any person detained under the Defence

of India Rules to

move any court for the enforcement of his rights

conferred by Arts.

21 and 22 of the Constitution remains suspended

in

view of the President's

Order of November 3, 1962. It has

c

D

E

F

G

H

also been ruled that such a person cannot raise the question that

the Defence

of India Act or the Rules are not valid because, if

allowed to do

so, that would mean that the petitioner's right to

move the court is intact.

Other questions arising from detentions

under the Defence

of India Rules were further considered in

Makhan

Singh v. The State of Punjab (

2

). It is there pointed out

that, although the right

of the detenu to move the Court is taken

away that can only be in cases in which the proper detaining

authority passes a valid order of detention and the order

is made

bona fide for the purpose which it professes. It would, therefore,

appear from the latter case that there

is an area of enquiry open

before a court

will declare that the detenu has lost his right to

move the court. That area at least embraces an enquiry into

whether there

is action by a competent authority and in accordance

with Defence of India Act and the Rules thereunder. Such an

enquiry

may not entitle the court to go into the merits of the case

once it

is established that proper action has been taken, for the

·

satisfaction is subjective, but till that appears the court is bound

to enquire into the legality

of the detention. It was contended

that

Makhan Singh's(') case arose under Art. 226 and that what

is stated there applies only to petitions under that article. This is

a misapprehension. The ruling made no difference between the

Art. 32 and Art. 226

in the matter of the bar created by Art. 359

and the President's

Order. What is stated there applies to petitions

for the enforcement

of Fundamental Rights whether by way of

Art. 32 or Art. 226.

Mr. Verma appearing for the State of Bihar, however, contends

that the area

of the enquiry cannot embrace anything more than

finding out whether there

is an order of detention or not and the

moment such an order,

good on its face, is produced all enquiry

into good faith, sufficiency of the reasons or the legality or illegality

(I) (1964] 3 S.C.R. 442. (2) [1964] 4 S.C.R. 797.

728 SUPREME COURT REPORTS (1966] I S.C.R.

of the action comes to an end, for to go into such matters is tanta- A

mount to allowing the petitioner to move the court which the

President's Order does not permit.

He contends that the courts'

power to issue a writ of

habeas

corp11s in such cases is taken

away

as completely as if cl. (2) of Art. 32 made no mention of the

writ of

habeas corp11s. According to him, an order under Rule

iO(I )(b) proper on its face, must put an end to enquiry of any B

kind.

In view of this objection it is necessary to state the exact

result of the President's Order for this has not been laid down

in any earlier decision of this Court.

The President declared a state of grave emergency by issuing

a Proclamation under Art. 352 on October 26, 1962. This C

Proclamation of Emergency gave rise to certain extraordinary

powers which are to be found

in Part XVIII of the Constitution,

entitled Emergency Provisions. Article 358 suspended the

pro­

visions of Art. 19 during the Emergency and Art. 359 permitted

the suspension of the enforcement of the rights conferred by

Part III.

That article reads : "359. Suspension of the enforcement of the rights

conferred by Part III during emergencies:

(I ) Where a Proclamation of Emergency

is

in operation, the President may by order

declare that the right to move any court

for the enforcement of such of the rights

conferred

by

Part III as may be men-

tioned in the order and all proceedings

pending in any court for the enforce-

ment of the rights so mentioned shall

remain suspended for the period during

which the Proclamation

is in force or for

such shorter period as may

be specified in

the order.

D

E

(2) An order made as aforesaid may extend G

to the whole or any part of the territory

of India.

(3} Every order made under clause

(I) shall,

as soon

as may be after it is made, be laid

before each House of

Parliament."

The President issued an order on November 3, 1962.

The Order reads :

II

....

A

B

c

R. M. LOHIA v. STATE (Hidayatullah, J.) 729

"ORDER

New Delhi, the 3rd November, 1962.

G.S.R.

1454.-In exercise of the powers conferred

by clause ( 1) of article 359 of the Constitution, the

President hereby declares that the right of

any

person to

move any court for the enforcement of the rights con­

ferred by article 21 and article 22 of the Constitution

shall remain suspended for the period during which the

Proclamation of Emergency issued under clause ( 1) of

article 352 thereof on the 26th October, 1962,

is in

force, if such person has been deprived of any such rights

under the Defence of India Ordinance, 1962 ( 4 of

1962) or any rule or order made thereunder.

No. F. 4/62-Poll(Spl.)

V. VISWANATHAN, Secy."

As a result of the above Order the right of any person to move

D any court for the rights conferred by Arts. 21 and 22 of the

Constitution remains suspended, if such person

is deprived of any

such rights under the Defence of India Ordinance 1962 (now the

Defence of India Act, 1962) or any rule or order made

there­

under. No doubt, as the article under which the President's

E Order was passed and also that Order say, the right to move

the court

is taken away but that is in respect of a right conferred

on

any person by Arts. 21 and 22 and provided such

person

is deprived of the right under the Defence of India

Ordi­

nance (now the Act) or any rule or order made thereunder. Two

things stand forth. The

first is that only the enforcement in a

F court of law of rights conferred by Arts. 21 and 22 is suspended

and the second

is that the deprivation must be under the Defence

of India Ordinance (now the Act) or any rule or order made

thereunder. The word

"thereunder" shows that the authority of

the Defence of India Act must be made out in each case whether

the deprivation

is by rule or order.

G It, therefore, becomes necessary to inquire what are the rights

which are

so affected ? This can only be found out by looking

into the content of the Arts.

21 and 22. Article 21 lays down

that no person

is to be deprived of his life or personal liberty

except according to procedure established by Jaw. This article

thinks in terms of the ordinary

laws which govern our society when

B there is no declaration of emergency and which are enacted subject

to the provisions of the Constitution including the Chapter on

Fundamental Rights but other than those made under the

powers

730 SUPRJ!MB COURT llBPORTS (1966) I S.C.IL

conferred by the Emergency Provisions in Part XVIII. When the

President suspended the operation of Art. 21 he took away from

any person dealt with under the terms of his Order, the right to

plead in a court of law that he was being deprived of his life and

personal liberty otherwise than according to the procedure establi­

shed by the laws of the country. In other words,

he could not

invoke the procedure established by ordinary law. But the President

did not make lawless actions lawful. He only took away the funda­

mental right in Art.

21 in respect of a person proceeded against

under the Defence of India Act or any rule or order made there­

under. Thus a person so proceeded could not claim to be tried under

the ordinary law

or bring an action under the ordinary law. But to

be able to say that the right to move the court for the enforce­

ment

of rights under Art. 21 is suspended, it is necessary to

estab­

lish that such person has been deprived of any such right under

the Defence of India Act

or any rule or order made thereunder,

that is to

say, under the authority of the Act. The action of the

authorities empowered by the Defence of India Act

is not com­

pletely shielded from the scrutiny of courts. The scrutiny with

reference to procedure established

by laws other than the Defence

of India Act

is, of course, shut out but an enquiry whether the

action

is justified under the Defence of India Act itself is not

shut out. Thus the

State Government or the District Magistrate

cannot add a clause of their own to the Defence of India Act

or

even the Rules and take action under that clause. Just as action

is limited in its extent, by the power conferred, so also the power

to move the court

is curtailed only when there is strict compliance

with the

Defence of India Act and the Rules. The Court will not

enquire whether any other law

is not followed or breached but the

Court

will enquire whether the Defence of India Act or the Rules

have been obeyed or not. That part of the enquiry and conse­

quently the right of a person to move the court to have that enquiry

made,

is not affected.

The

President's Order next refers to Art. 22. That Article

creates protection against illegal arrest and detention. Clause

(I)

confers some rights on the person arrested. Clause (2) lays down

the procedure which must

be followed after an arrest is made.

By cl. (

3) the first two clauses do not apply to an alien enemy or

to a person arrested or detained under any law providing for

pre­

ventive detention. Clauses (4), (5), (6) and (7) provide for the

procedure for dealing with persons arrested or detained under any

law providing for preventive detention, and lay down the minimum

or compulsory requirements. The provisions of Art. 22 would

have applied

to arrest and detentions under the Defence of India

A

B

c

D

E

~·

G

H

'

,

R. M. LORIA v. STATE (Hidayatul/ah, J.) 731

A Act also if the President's Order had not taken away from such a

person the right to

move any court to enforce the protection of

Art. 22.

B

c

D

E

F

G

H

The net result of the President's Order is to stop all claims to

enforce rights arising from

laws other than the Defence of India

Act and the Rules and the provisions

of Art. 22 at variance with

the Defence

of India Act and the Rules are of no avail. But the

President's

Order does not say that even if a person is proceeded

against

in breach of the Defence of India Act or the Rules he

cannot

move the court to complain that the Act and the Rules,

under colour of which some action

is taken, do not warrant it.

It was thus that this Court questioned detention orders by

Addi­

tional District Magistrates who were not authorised to make them

or detentions

of persons who were already in detention after

con­

viction or otherwise for such a long period that detention orders

served could

have had no relation to the requirements of the

Defence

of India Act or the Rules. Some of these cases arose

under Art. 226 of the Constitution but in considering the bar

of

Art. 359 read with the President's

Order, there is no difference

between a petition under that article and a petition under Art. 32.

It

follows, therefore, that this Court acting under Art. 32 on a

petition for the issue of a writ of

habeas corpus, may not allow

claims based

on other laws or on the protection of Art. 22, but

it may not and, indeed, must not, allow breaches

of the Defence

of India Act or the Rules to

go unquestioned. The President's

Order neither says so nor is there any such intendment.

There

is, however, another aspect which needs to be mentioned

here. That

is the question of want of good faith on the part of

those

who take action and whether such a plea can be raised.

This topic

was dealt with in Makhan Singh's case('). At page

828 the following observation

is to be found :-

"Take also a case where the detenu moves the court

for a writ

of Habeas Corpus on the ground that his

deten­

tion has been ordered ma/a fide. It is hardly necessary

to emphasise that the exercise of a power

ma/a fide is

wholly outside the scope of the Act conferring the power

and can

always be successfully challenged. It is true

that a mere allegation that the detention

is mala fide

would not be enough; the detenu will

have to prove the

mala fides. But if the mala fides are alleged, the detenu

cannot

be precluded from substantiating his plea on the

ground

of the bar created by Art. 359 ( 1) and the

Presi-

(I) [1964] 4 S.C.R. 797.

732 SUPllEMB COURT REPORTS (1966] I S.C.R.

dential Order. That is another kind of pica which is out- A

side the purview of Art. 359( I)."

Mr. Verma, however, contends on the authority of Smith v.

East Elloe Rural District Cormical & Others(

1

)

that the validity

of the orders under the Defence of India

Rules I 962 cannot be

challenged on the ground of bad faith when the action

is other-B

wise proper. That case dealt with the Acquisition of Land

(Authorization Procedure) Act 1946 (9

&

10 Geo 6 Ch. 49).

Paragraph 15(1) of Part IV of Schedule to that Act provided:

"If any perso11 aggrieved by a compulsory purchase

order desires to question the validity thereof.

... on the

ground that the authorization of a compulsory purchase

thereby granted

is not empowered to be granted under

this

A~t. ..... he may, within six weeks from the date

on which notice of the confirmation

or making of the

order

...... is first published ...... make an application

to the High Court

........

".

The appellant more than six weeks after the notice had been pub­

lished brought an action, claiming inter a/ia that the order was

made and confirmed wrongfully and in bad faith on the part of

the clerk. Paragraph 16 of that Act provided :

"Subject to the provisions of the last foregoing para-

graph, a compulsory purchase order

...... shall not

...... be questioned in any legal proceeding what-

soever ......

".

The House of Lords (by majority) held that the jurisdiction of

I>

E

the court was ousted in such wis-e that even questions of bad faith

could not

be raised. Viscount

Simonds regretted that it should be F

so, but giving effect to the language of paragraph 16, held that

even an allegation of bad faith was within the

bar of

Paragraph 16.

Lord Morton of Henryton, Lord Reid and Lord Somervill of

Harrow were of opinion that Paragraph 15 gave no such oppor­

tunity. Lord Radcliffe dissented.

The cited case can have

no

relevana: here because the statute G

provided for ouster of courts' jurisdiction in very different circum­

stances. Although this Court has already stated that allegations

of bad faith can be considered, it may be added that where statu­

tory powers arc conferred to take drastic action against the lifo

and liberty of a citizen, those who exercise

it may not depart from

the purpose. Vast powers

in the public interest are granted but

II

under strict conditions. If a person, under colour of exercising

(!) [1956! A.C. 736.

•

;

-

..

A

B

c

D

,

E

G

J

ll

R. M. LOHIA v. STATE (Hidayatullah, J.) 7 33

the statutory power, acts from some improper or ulterior motive,

he acts in bad faith. The action of the authority

is capable of

being viewed in two

ways. Where power is misused but there is

good faith the act is only ultra vires but where the misuse of

power

is in bad faith there is added to the ultra vires character of

the act, another vitiating circumstance. Courts have

always acted

to restrain a misuse of statutory power and the more readily when

improper motives underlie

it. The misuse may arise from a breach

of the law conferring the power or from an abuse of the power

in bad faith.

In either case the courts can be moved for we do

not think that Art. 359 or the President's

Order were intended to

condone an illegitimate enforcement of the Defence of India Act.

We now proceed to examine the contentions of Dr. Lohia by

which he claims to be entitled to have the order of the District

Magistrate

set aside. It is convenient to begin with the allegation

of want of good faith. Dr. Lohia alleges that there

was a conspiracy

between the Central Government, the State of Bihar, the Senior

Superintendent of Police and the District Magistrate, Patna, to

stifle his disclosures against the Bihar Government, the Chief

Minister and others. He also alleges that he

was arrested for a

substantive offence under the Indian Penal Code but the

arrest has been converted into preventive detention to avoid proof

in a court of law. He says that he was about to leave Patna and

if the train was not late he would have gone away and he hints

that his detention

was made to prevent him from taking

part in the

Session of Parliament. The District Magistrate and the

Inspector of Police deny these allegations. The District Magistrate

has

given the background of events in which he made the order on

his responsibility.

On reading the affidavits on both sides, we are

statisfied that the contentions of Dr. Lohia are ill-founded and

that the order of detention was made by

the. District Magistrate in

good faith.

There

is no dispute that the District Magistrate was duly

autho­

rized to act under Rule 30 of the Defence of India Rules, 1962.

Dr. Lobia, however, says that the order is in flagrant disregard of

the requirements of the Defence of India Act, 1962 and the Rules.

For this purpose

he bases his argument on three circumstances :

(i) that the District Magistrate acted outside his juris­

diction

as created by Notification No. 11155-C

dated 11-8-1964 published in the Bihar Gazette

Extra dated August 11, 1964;

(ii) that the District Magistrate's order is defective

because be purports to derive power from notifica-

;

734 SUPUMB CO~T llEPOllTS (1966) 1 S.C.R.

tion No. I 80 of March 20, 1964 which had been A

rescinded; and

(iii) the District Magistrate purports to act to main­

tain law and order when he

can only act to maintain

public order under the Defence

of India Act and the

Rules thereunder.

We shall now consider these grounds of objection. Before we do

so we may read the provisions of the Defence of India Act and the

Rules

to which reference may be necessary.

The first part of the Defence of India Act we wish to read is

the long title and the preamble. They arc :

"An Act to provide for special measures to ensure

the public safety and interest, the defence

of India and

civil defence and for the trial

of certain offences and for

matters connected therewith.

WHEREAS the

President bas declared by Proclama­

tion under clause (I ) of article 352 of the Constitution

that a grave emergency exists whereby the security of

India is threatened by external aggression;

AND WHEREAS it is necessary to provide for

special measures to ensure the public safety and interest,

the defence

of India and civil defence and for the trial

of certain.

offences and for matters connected therewith;

"

}I

c

D

E

We may next read section 3 which confers power to make rules : F

"3. Power to make rules.

(I ) The Central Government may, by notification

in the Official Gazette, make such rules as appear to it

necessary or expedient for securing the defence of India

and civil defence, the public safety, the maintenance of

public order

or the efficient conduct of military opera­

tions, or for maintaining supplies and services essential to

the life of the communitj."

Then by way of illustration and without prejudice to the generality

of the powers conferred

hy sub-s. ( 1), certain specific things are

mentioned for

which provision may be made by rules. Clause 15

provide1;

G

II

•

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•

A

B

c

D

E

R. M. LORIA v. STATE (Hidayatullah, J.) 735

"(15) Notwithstanding anything in any other law

for the time being in

force,-

(i) the apprehension and detention in custody of

any person whom the authority empowered by the rules

to apprehend or detain (the authority empowered to

detain not being lower in rank than that of a District

Magistrate) suspects, on grounds appearing to that

authority to be reasonable, of being of hostile origin or of

having acted, acting, being about to act or being likely to

act in a manner prejudicial to the defence of India and

civil defence,

the security of the State, the public safety

or interest, the maintenance of public order, India's rela­

tions with foreign States, the maintenance of peaceful

conditions in any part or area of India or the efficient

conduct of military operations, or with respect to whom

that authority

is satisfied that his apprehension and deten-

tion are necessary for the purpose of preventing him from

acting in any such prejudicial manner,

(ii) the prohibition of such person from entering or

residing or remaining

in any area,

(iii),' the compelling of such person to reside and

remain in any area, or to

do or abstain from doing any­

thing, and

(iv) the review of orders of detention passed in

pursuance of any rule made under sub-clause ( 1)

;"

We need not trouble ourselves with the other clauses. Section 44

F next provides :

G

"44. Ordinary avocations of life to be interfered with

as little as possible.

Any authority or person acting in pursuance of thi~

Act shall interfere with the ordinary avocations of life

and the enjoyment of property as little as may be conso­

nant with the purpose of ensuring the public safety and

interest and the defence of India and civil defence."

By virtue of the powers conferred by s. 3 of the Defence of

India Ordinance, 1962 (now the Act), the Defence of India Rules

H 1962 were framed. Part IV of these Rules is headed "Restriction

of Movements and Activities of Persons" and it consists of Rules

25-30, 30-A, 30-B and 31-34. These rules provide for various

736 SUPREME COURT REPORTS (1966) I S.C.R.

subjects such as "Entering enemy territory" (Rule 25), "Entering A

India" (Rule 26), "Information to be supplied by persons entering

India" (Ruic 27) or "Leaving India" (Rule 28), "Regulation of

Movement of Persons within India" (Rule 29), "Powers of pho­

tographing etc. of suspected person" (Rule 31 ), "Control and

winding up of certain organisations" (Rule 32), provisions for

"Persons captured as prisoners" (Rule 33) and "Change of name

B

by citizens of India" (Rule 34). We are really not concerned with

these rules but the headings are mc.ntioned to consider the argu­

ment of Dr. Labia on No. (I) above. Rule 30 with which we

are primarily concerned consists of eight sub-rules_ We are con­

cerned only with sub-rule (I). That rule reads :

"30. Restriction of movements of suspected persons,

restriction orders and detention

orders.-

(

I ) The Central Government or the State Govern­

ment, if ii is satisfied with respect to any particular

c

person that with a view lo preventing him from acting in D

any manner prejudicial to the defence

of India and civil dcfenc~. the public safety, the maintenance of public

order, India's relations with foreign powers, the mainten-

ance of peaceful conditions in any part of India, the

efficient conduct of military operations or the mainten-

ance of supplies and services essential to the life of the

community, it

is necessary

so to do, may make an

order-

(a)

(b) directing that he be detained;

"

Under s. 40 ( 2) of the Defence of India Act, the State Govern­

ment may by order direct that the powers conferred by the Rules

may

be exercised by any officer or authority in such

circumstances

and under such conditions as may be specified in the direction. A

special limitation was indicated in

s. 3 (15) of the Act, where

authority

is given for making rules in connection with the

apprehen­

sion and detention in custody of persons, that the delegation should

not be made

to an officer

below the rank of a District Magistrate.

By virtue

of these various powers the State Government issued

a notification

on March

20, 1964 authorising all District Magis­

trates to exercise the powers of Government under Rule 30( 1) (b).

F

G

H

'

•

•

•

R. M. LORIA v. STATE (Hidayatullah, 1.) 737

A That notification was later rescinded by another notification issued

on June

5, 1964. A fresh notification (No. 11155-C) was issued

on August 11, 1964. This

was necessary because of a mistake

in the first notification. The new notification reads :

"No. 11155-C.-In exercise of the powers con-

B ferred

by sub-section (2) of section (

40) the Defence of

India Act, 1962 (Act

51 of 1962), the Governor

ot

Bihar is pleased to direct that the powers exercisable by

the State Government under clause (b) of sub-rule ( 1)

of rule 30 of the Defence of India Rules, 1962, shall

be exercised by all District Magistrates within their res-

c pective jurisdictions.

D

By order of the Governor of Bihar

M. K. Mukharji

Secretary to Government".

Dr. Lohia contends that the District Magistrate in his affidavit

"says that he apprehended danger not only in his district but in

the whole of Bihar State and even outside and hence he bas not

acted within

his jurisdiction. His argument attempts to make out,

what

we may call, an exercise of extraterritorial jurisdiction on

t: the part of the District Magistrate. He contends also that the

notifications are bad because although the Defence of India Act

contemplates the imposition of conditions, none

were imposed and

no circumstances for the exercise of power

were specified. In our

judgment, none of these arguments can be accepted.

F Section 40(2) of the Act does not require the imposition of

any conditions but only permits it. This is apparent from the

words "if any" in the sub-section. The only condition that the

Sta_!~ Government thought necessary to impose is that the District

Magistrates must act within their respective juris~ictions. It can­

not

be said that this condition was not complied with. Dr. Lobia

G

was in the

Patna District at the time. There was nothing wrong if

the District Magistrate took a broad

view of bis activities so as

to

weigh the possible harm if he was not detained.

Such a view­

ing of the activities of .a person before passing the order against

him

does not necessarily spell out extraterritoriality in the sense

suggested but is really designed to assess properly the potentiality

H of danger which

is the main object of the rule to prevent. We

find nothing wrong with the order on the score of jurisdiction and

argument

No. (i) stated above must fail. Argument No. (ii) is

LSSup. C. & J./65-4

738 IVPRDB CX>UaT UPOll.TS (1966) I S.C.IL

oot of any substance. There was a clerical error in mentioning A

the notification and the error did not vitiate the order of detention.

This brings

us to the last contention of Dr. Lohia and that

is

the most serious of all. He points out that the District Magistrate

purports to detain him with a

view to preventing him from acting

in any manner prejudicial to the public safety and the maintenance

8

of law and order and argues that the District Magistrate had mis­

understood his own powers which were to prevent acts prejudicial

to public order and, therefore, the detention

is illegal.

On the other

side, Mr. Verma contends that the Act and the Rules speak of pub-

lic order which is a concept much wider in content than the con­

oept of Jaw and order and includes the latter, and whatever is done c

in furtherance of law and order must necessarily be in furtherance

of public order. Much debate took place on the meaning of the

two expressions. Alternatively, the State of Bihar contends that

the order passed by the District Magistrate prior to the issue of the

actual order of detention made use of the phrase "maintenance of o

public order" and the affidavit which the District Magistrate swore

in support of the return also uses that phrase and, therefore, tho

District Magistrate was aware of what his powers were and did

exercise them correctly and in accordance with the Defence of

India Act and the Rules. We shall now consider the rival conten-

tions. E

The Defence of India Act and the Rules speak of the conditions

under which preventive detention under the Act can

be ordered.

In its Jong title and the preamble the Defence of India Act speaks

of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. Tho F

expressions public safety and interest between them indicate the

range of action for maintaining security, peace and tranquillity of

India whereas the expressions defence of India and civil defence

connote defence of India and its people against aggression from

outside and action of persons within the country. These generic

terms were used because the Act seeks to provide for a congeries G

of action of which preventive detention is just a small part. In

conferring power to make rules, s. 3 of the Defence of India Act

enlarges upon the terms of the preamble by specification of details.

It speaks of defence of India and civil defence and public safety

without change but it expands the idea of public interest into H

"maintenance of public order, the efficient conduct of military

operations and maintaining of supplies and services essential to tho

life of the community". Then it mentions by way of illustratioa in

-·

R. M. LOHIA v. STATE (Hidayatu/lah, /.) 7 3!>

A cL ( 15) of the same section the power of apprehension and deten­

tion in custody of any person whom the authority empowered by

the rules to apprehend or detain (the authority empowered to detain

not being lower in rank than that of a District Magistrate), sus­

pects, on grounds appearing to that authority to be reasonable

:-

B

c

D

(a) of being of hostile origin; or

(b) of having acted, acting or being about to act or being

likely to act in a manner prejudicial

to--

(i) the defence of India and civil defence;

(ii) the security of the State;

(iii) the public safety or interest;

(iv) the maintenance

of public order;

(v) India's relations with foreign states;

(vi) the maintenance of peaceful

conditions in any

part

or area of India; or

(vii) the efficient conduct of military operations.

It will thus appear that security of the state, public safety or

interest,

E maintenance of public order and the maintenance of peaceful con­

ditions in any part

or area of India may be viewed separately even

though strictly one clause may have an effect

or bearing on another.

Then follows rule 30, which repeats the above conditions and per­

mits detention of any person with a view to preventing him from

acting in any of the above ways. The argument of Dr. Lohia that

F the conditions are to be cumulatively applied

is clearly untenable.

G

It is not necessary to analyse rule 30 which we quoted earlier and

which follows the scheme of section 3 (

15 ) . The question is

whe­

ther by taking power to prevent Dr. Lohia from acting to the pre­

judice of "law and order" as against "public order" the District

Magistrate went outside his powers.

The subject of preventive detention has been discussed almost

threadbare and one can hardly venture in any direction without

coming face to face with rulings of courts. These cases are now

legion. It may be taken as settled that the satisfaction of the de­

taining authority cannot be subjected to objective tests, that the

B courts are not to exercise appellate powers over such authorities

and that an order proper on its face, passed by a competent autho­

rity in good faith is a complete answer to a petition such as this.

740 SUPREMB COUil? llEPORTS [ 1966) l S.C.L

The rulings in our country adopt this approach as do the English A

Courts. In England one reason given for the adoption of this

approach was that the power was entrusted to the Home Secretary

and to the Home Se1:retary alone. In India courts are ordinarily

satisfied on the production of a proper order of detention made in

good faith

by an authority duly authorised and have not enquired

further even though the power

is exercised by thousands of officers B

subordinate to the Central and State Governments as their dele­

gates. When from the order itself circumstances appear which

raise a doubt whether the officer concerned had not misconceived

his own powers, there

is need to pause and enquire. This is more

so when the exercise of power

is at the lowest level permissible

under the Defence of India Act. The enquiry then

is not with a C

view to investigate the sufficiency of the materials but into the

officer's notions of his power, for it cannot be conceived for a

moment that even if the court did not concern itself about

tho

sufficiency or otherwise of the materials on which action is taken,

it would, on proof from the order itself that the officer did not rea-

0

lise the extent of his own powers, not question the action. The

order of detention is the authority for detention. That is all which

the detenu

or the court can see. It discloses how the District

Magistrate viewed the activity of the detenu and what the District

Magistrate intended to prevent happening.

If the order passed by

him shows that he thought that his powers were more extensive E

than they actually were, the order might

fail to be a good order.

The District Magistrate here

acte{I to maintain law and order

and not public order. There are only two pos.~ibilities: (i) that

there was a slip in preparing the order,

or (ii) that maintenance

of law and order was in the mind of the District Magistrate and

he thought it meant the same thing as maintenance of public order.

As to the first it may be stated at once that the District Magistrate

did not specify it as such

in his affidavit. He filed an earlier order

by him in which he had used the words

"public order" and which

we have quoted earlier. That order did not refer to his own state

of the mind but to the report of the Senior Superintendent of

Police.

In his affidavit he mentioned "public

order" again but did

not say that the words "law and order" in his order detaining

Dr. Lohia were a slip. He corrected the error about the notifica-

tion but naively let pass the other, and more material error, with-

F

G

out any remark. Before us every effort possible was made to re­

concile "public order" with "law and order" as, indeed, by a pr<>-H

cess of paraphrasing, it is possible to raise an air of similitude bet­

ween them. Such similitude is possible to raise even between phra-

ses as dissimilar as "for preventing breach of the peace", "in the

;

R. M. LOIUA v. STATE (Hidayatullah, J.) 741

A interest of the QUblic", "for protecting the interests of a class of

persons'', "for administrative reasons" and "for maintaining Jaw

and order". We cannot go by similitude. If public order connotes

something different from law and order even though there may

be

some common territory between them then obviously the District

Magistrate might have traversed ground not within

"public order".

B It would then not do to say that the action is referrable to one

power rather than the other, just

as easily as one reconciles diverse

phrases by a gloss. When the liberty of the citizen

is put within the

reach of authority and the scrutiny from courts

is barred, the

action must comply not only with the substantive requirements of

c

D

E

F

the Jaw but also with those forms which alone can indicate that

the substance has been complied with.

It is, therefore, necessary

to examine critically, the order which mentioned

"law and order"

with a view to ascertaining whether the District Magistrate did not

act outside his powers.

Before

we do so we find it necessary to deal with an argument

of Mr.

Shastri who followed Mr. Verma. He contends that there

is no magic in using the formula of the Act and Rules for the

language of the Act and the Rules can be quoted mechanically.

We regret such an attitude. The President in his Order takes away

the fundamental rights under Arts.

21 and 22 from a person pro-

vided he has been detained under the Defence of India Act or the rules made thereunder. The Order is strict against the citizen but

it

is

also strict against the authority. . There can be no toleration

of a pretence of using the Defence of India Act. The President's

Order itself creates protection against things such as arbitrariness,

misunderstood powers, mistake of identity by making his order

apply only to cases where the detention is under the Act or the

rules thereunder. No doubt, what

matters is the substance but the

form discloses the approach of the detaining authority to the

seri­

ous question and the error in the form raises the enquiry about the

substance.

It is not every error in the order which

will start such

an enquiry. We have paid no attention to the error in the reference

G

to the notification because that may well be a slip, and power and

jurisdiction

is referrable to the notification under which they

would

have validity. The other is not such a veneal fault. It opens the

door to enquiry what did the District Magistrate conceive to be

his powers?

In proceeding to discuss this question we may consider a

H decision of the Court of Appeal in England in

Carltona Ltd. v.

Commissioners of Works and Others(

1

). Curiously enough it was

I. [1943] 2 All. E.R. 560.

742 IUPUlO COUlT IEPOR.TS (1966] 1 s.ca.

brought to our notice by Dr. Lohia and not by the other side. That A

case arose under Regulation 51(1) of the Defence (General)

Regulations

in England during the last World War. The

Regula­

tion read:

"A competent authority, if it appears to that autho-

rity

to be necessary or expedient so to do in the

interes!3 B

of the public safety, the defence of the realm or the

efficient prosecution of the war,

or for maintaining sup-

plies and services essential to the life of the community,

may take possession of any land, and may give such

directions as appear to the competent authority to be

necessary

or expedient in connection with the taking of

C

possession of that land."

There was an order against Carltona Ltd. by the Colnmissioncr of

Works requisitioning the factory. The order read :

"I have to inform you that the department have come

to the conclusion that it is essential, in the national inte­

rest, to take possession of the above premises occup~

by you."

D

It was objected on behalf of the Company that the mind was not

directed to any one of the various heads mentioned in the Regula­

tion which were put in the alternative. Lord Greene, M.R. speak-E

ing on behalf of Lord Goddard (then Lord Justice) and Lord du

Parcq (then Lord Justice) observed :

"It was said that it was the duty of the person acting

in the capacity of 'a competent authority' to examine the

facts of the case and consider under which,

if any,

of

those various heads the matter came, and it is said that

the assistant secretary did nothing of the kind.

It is to

be observed that those heads arc not mutually exclusive

heads at all. They overlap at every point and

maDJ

matters will fall under two or more of them, or under

all four. I read the evidence

as meaning that the

assist­

ant secretary, seeing quite clearly that the case with

which he was dealing and the need that he wished

to

satisfy was one which came under the regulation, did not aolemnly sit down and ask himself whether it was for the

efficient prosecution of the war that this storage was

required for maintaining supplies and services essential

to the life

of the community. He took the view that it was required either for all those purposes, or, at any

F

G

H

•

•

A

B

c

IL M. LOHIA v. STATE (Hidayatullah, J.) H3

rate, for some of them, and I must confess it seems to me

that it would have been a waste of time on the facts of

this case for anyone seriously to sit down and ask him­

self under which particular head the case fell. He regard­

ed it, as I interpret his evidence, as falling under all tho

heads, and that may very well

be having regard to the

facts that these heads overlap in

the way that I have

mentioned.

It seems to me, therefore, that there is no

substance in that point, and his evidence makes it quite

clear that he did bring his mind to bear on the question

whether it appeared to

him to be

necessary or expedient

to requisition this property for the purposes named,

or

some of

them."

The case is distinguishable on more than one ground. To

begin with, it dealt with an entirely different situation and differ­

ent provision of law. No order in writing specifying satisfaction

on any

or all of the grounds was required. Detention under Regu-

D lation 18-B required an order just as detention under the Defence

of India Act. The distinction between action under Regulation 51

and that under Regulation 18-B was noticed by the Court of

Appeal in

Point of Ayr Collieries Ltd. v. Lloyd-George('). It is

manifest that when property was requisitioned it would have been

a futile exercise to determine whether the act promoted the efficient

E prosecution of the war, or the maintaining of supplies and

ser­

vices. But when a person is apprehended and detained it may

be necessary to set out with some accuracy what he did or was

likely to do within the provisions of Rule 30, to merit the deten­

tion. The use of one phrase meaning a different thing in place of

that required by the Act would not do, unless tho phrase imported

F means the same thing as the phrase in the Act. Here the phraJe

used is niaintenance of Jaw and order and we must see how that

phrase

fits into the Rule which speaks of maintenance of "public order". The words "public order" were considered on some

previous occasions in this Court and the observations made then>

G are used to prove that maintenance of public order is tho same

thing as maintenance of law and order. We shall refer to some

of these observations before we discuss the two phrases in the

context of the Defence of India Rules.

Reliance

is first placed upon a decision of tho Federal Court in

Lakhi Narayan Das v. Province of Bihar(

2

)

where the

Court

H dealing with item 1 of Provincial List, 7th Schedule in the Gov­

ernment of India Act, 1935 which read-

I. (1943] 2 All. B.R. 546 at 548. 2. (1949] P.C.R. 693 at 104.

744 SUPREME COURT REPORTS (1966] l S.C.R.

"Public order (but not including the use of His

Majesty's naval, military

or air forces in aid of the civil power)"

observed that "Public Order" with which that item began was "a

most comprehensive term''. Referenc~ is also made to Ramesh

Thapar

v.

State of Madras(') where this Court dealing with the

same subject matter also observed :

A

B

" .... 'Public order' is an expression of wide con­

notation and signifies that state of tranquillity which

prevails among the members

of a political society as a

result

of internal regulations enforced by the

Govern-

ment which they have established ...... it must be C

taken that 'public safety' is used as a part of the wider

concept

of public order ......

"

and referring to Entry 3 in List HI (Concurrent List) of the 7th

Schedule

of the Constitution which includes the

"security of a

State" and "maintenance of public order" as distinct topics of D

legislation, observed-

" ...... The Constitution thus requires a line to be

drawn

in the field of public order or tranquillity,

mark­

ing off, may be, roughly, the boundary between those

serious and aggravat~d forms of public disorder which

are calculated to endanger the security of the State and

the relatively minor breaches of the peace

of a purely

local significance, treating for this purpose differences

in degree

a~ if they were differences in kind."

E

Fazl Ali J. took a different view which he had expressed more

fully in

Brijbhushan and Another v. the

State of Delhi(') but he F

also observed that "public safety" had, as a result of a long course

of legislative practice, acquired a well r.~cognised meaning and

was taken to denote safety or security of the State and that the

expression "public order" was wide enough to cover small dis­

turbances of the peace which do not jeopardise the security of the G

State and paraphrased the words "public order" as public tran­

quillity."

Both the aspects of the matter were again before this Court in

'

The Superintendent Central Prison, Fatehgarh v. Ram Manohar •

Lohia(

1

)

when dealing with the word',ng of clause (2) of Art 19

as amended by the Constitution (First Amendment) Act, 1951, it H

I. [1950] S.C.R. SP3 al 598. 2. [1950J S.C.R. 605. •

3. [1960] 2 S.C.R. 821.

-

•

R. M. LOHL v. STATE (Hidayatu/lah, J.) 745,

A fell to be decided what "public order" meant. Subba Rao J. speak­

ing for the Court referred to all earlier rulings and quoting from.

them came to the conclusion that "public order" was equated with.

public peace and safety and said :

B

" ...... Presumably in an attempt to get over the

effect of these two decisions, the expression "public

order" was inserted in Art. 19 ( 2) of the Constitution by

the Constitution (First Amendment) Act, 1951, with a

view to bring in offences involving breach of purely local

significance within the scope of Art. 19

........

".

Summing up the position as he gathered from the earlier cases, the

C learned Judge observed :

D

" ...... "Public order" is synonymous with public

safety and tranquillity:

it is the absence of disorder in­

volving breaches of local significance in contradistinc­

tion to national upheavals, such

as revolution, civil strife,

war, affecting the security

of the State; ......

".

These observations determine the meaning of the words.

"public order" in contradistinction to expressions such as "public

safety", "security of the State". They were made in different con­

texts. The first three cases dealt with the meaning in the legisla­

lative Lists

as to which, it is settled, we must give as large a mean-

E ing as possible.

In the last case the meaning of

"public order"

was given in relation to the necessity for amending the Constitu­

tion as a result

of the pronouncements of this Court. The con­

text in which the words were used was different, the occasion was

different and the object in sight was different.

1<' We have here a case of detention under Rule 30 of the Defence

of India Rules which permits apprehension and detention of a

person likely to act in a manner prejudicial to the maintenance of

public order.

It follows that if such a person is not detained public

disorder is the apprehended result. Disorder

is no doubt prevent­

ed by the maintenance of law and order also but disorder is a

G broad spectrum which includes

at one end small disturbances

and

at the other the most serious and cataclysmic happenings. Does

the expression "public order" take in every kind of disorder or cnly

some ? The answer to this serves to distinguish "public

order" from "law and order" because the latter undoubtedly takes

in all of them. Public order if disturbed, must lead to public

H disorder. Every breach of the peace does not lead to public dis­

order. When two drunkards quarrel and fight there

is disorder

but not public disorder. They can be dealt with under the powers

7'6 IUPUJO CX>Vl.T UPOllTS (1966) l S.c.&.

to maintain law and order but cannot be detained on the ground A

that they were disturbing public order. Suppose that the two

fighters were of rival communities and one of them tried to raise

communal passions. The problem is still one of law and order

but it raises the apprehension of public disorder. Other examples

can be imagined. The contravention of Jaw always affects order

but before it can be said to affect public order, it must affect the B

community

or the public at large. A mere disturbance of

law

and order leading to disorder is thus not necessarily sufficient for

action under the Defence of India Act but disturbances which

subvert the public order are. A District Magistrate

is entitled

to take action under Rule

30(1 )(b) to prevent subversion of

("

public order but not in aid of maintenance of law and order under

ordinary circumstances.

It will thus appear that just as "public order" in the rulings of

this Court (earlier cited) was said to comprehend disorders of !cm

gravity than those affecting "security of State", "law and order"

also comprehends disorders of less gravity than those affecting D

"public order". One has to imagine three concentric circles. Law

and order represents the largest circle within which is the next

circle representing public order and the smallest circle represenb

security of State. It is then easy to :;ee that an act may affect law

and order but not public order just as an act may affect public

order but not security of the State.

By using the expression "main-

•:

tenance of law and order" the District Magistrate was widening his

own field of action and was adding a clause to the Defence of

India Rules.

We do not know the material on which the District Magistrate

acted. If we could examine the reasons we may be able to say

whether the action can still be said to fall within the other topic

public safety_ That enquiry is not open to us. If we looked into

the matter from that angle we would be acting outside our powen.

The order on its face shows two reasons. There is nothing tD

show that one purpose was considered to be more essential than

the other. We are not, therefore, certain that the District Mag»­

trate was influenced by one consideration and not both. The order

of detention

is

a warrant which authorises action. Affidavits hard­

ly improve the order

as it is. If there is allegation of bad

faith

they can be seen to determine the question of good faith. If mis­

taken identity is alleged we can satisfy ourselves about the identitJ.

But if action is taken to maintain law and order insTead of main­

taining public order, there

is room to think that the powers

were

misconceived and if there is such a fundamental error then the

F

G

II

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•

•

R. M. LOHIA Y. STATB (Dayal, I.) 747

A action remains vulnerable. It will not be possible to say that

although maintenance of law and order were specified, what was

considered

was the problem of maintenance of public order. The

error is an error of a fundamental character and unlike quoting a

wrong notification.

It is thus apparent why

on.e error in the order

of detention

is admitted but not the other, and why with elaborate

B arguments it

is attempted to establish that

"public order" involves

elements more numerous than "law and order" where, in fact, the

truth

is the other way.

It may be mentioned that Dr. Lohia claimed that the satisfac­

tion of the President under Art. 359

is open to scrutiny of

the

C court. We have not allowed him to argue this point which is now

concluded by rulings of this Court.

In our judgment the order of the District Magistrate exceeded

his powers. He proposed to act to maintain law

and-

order and the

order cannot now be read differently even if there

is an affidavit

D the other way.

We have pondered deeply over this case. The

action of the District Magistrate

was entirely his own. He was,

no doubt, facing a law and order problem but he could deal with

such a problem through the ordinary law of the land and not by

means of the Defence of India Act and the Rules. His powers

were limited to' taking action to maintain public order. He could

E not run the law and order problems in his District by taking

recourse to the provisions for detention under the Defence of India

Act.

If he thought in terms of

"public order" he should have

said so in the order or explained how the error arose. He does

neither. If the needs of public order demand action a proper order

F

should be passed. The detention must, therefore, be declared to

be outside the Defence of India Act, 1962 and the Rules made

thereunder. Dr. Lohia

is entitled to be released from custody and

we order accordingly.

Raghubar Dayal,

J. In this writ petition Dr. Lohia challenges

G the validity of the order made by the District Magistrate, Patna,

dated August 9, 1965, under cl. (b) of sub·r. (1) of r. 30 of the

Defence of India Rules, 1962, hereinafter called the Rules. This

order is as follows :

H

"Whereas I, J. N. Sahu, District Magistrate, Patna,

am satisfied with respect to the person known as Dr. Ram

Manohar Lohia, Circuit House, Patna that with a view

to preventing him from acting in any manner prejudicial

to

the public safety and the maintenance of law and

148 SUPllEMB COlJlT llBPOllTS (1966] 1 S.C.R.

order, it is necessary to make an order that he be de­

tained.

Now, therefore, in the exercise of the powers con­

ferred

by clause (b) of sub-rule ( l) of rule

30 of tho

Defence of India Rules, 1962 read with Notification

No.

180/CW dated the

20th March I 964 of the Govt.

of Bihar, Political (Special) D;:partment, I hereby

direct that the said Dr. Ram Manohar Lohia

be arrest-

ed by the police wherever found and detained in the

Central

Jail Hazaribagh, until further

orders."

B

If this order is valid, Dr. Lohia cannot move this Court for

the enforcement of h;s rights conferred by arts. 21 and 22 of the C

Constitution, in view of the Order of the Pre;ident dated Novem-

ber 3, I 962, in the exercise of powers conferred on him by cl. (I)

of art. 359 of the Constitution.

Dr. Lohia has challenged the validity of this order on several

grounds. I agree with the views expressed by Hidayatullah

J.,

about all the contentions except one. That contention is that the

appropriate authority

is not empowered to order detention with a

view to prevent a person from acting in any way prejudicial

to the

maintenance of law and order. It

is urged that though the District

Magistrate could order the detention of the petitioner with a view

to prevent him from acting in any way prejudical to the public

safety and the maintenance of public order, he could not order

detention with a view to prevent the petitioner from acting prejudi­

cially to the public safety and maintenance of law and order, as

the latter object, being not synonymous with the object of prevent­

ing him from acting prejudicial to public order,

is outside the pur­

view of the provisions

of r.

30( I) of the rules and that, therefore,

the entire order

is bad. I do not agree with this contention.

Under r.

30(1)(b), the District Magistrate could have made

the order of detention with respect to Dr. Lohia if he

was satisfied

that he be detained with a view to prevent him from acting in any

manner prejudicial to public safety

or maintenance of public order. Such satisfaction is subjective and not objective. The Court can-

D

E

G

not investigate about the adequacy of the reasons which led to his

satisfaction. The Court can, however, investigate whether he

exercised the power under r. 30 honestly and bona fide or not i.e.,

whether he ordered detention on being satisfied as required by

r. 30. What is crucial for the validity of the detention order is such H

satisfaction and not the form in which the detention order

is framed.

A detenu can question the validity of the detention

order-valid

•

•

'

-

•

,

ll., M. LOHJA r. STATE (Dayal, /.) 749

A on its face--on various grounds including that of mala {ides. The

onus will be on him to prove mala (ides. He can .-question the

validity of the detention order on the same ground when,

on its

face, it appears to be invalid.

In such a case the onus will be on

the

detaining authority to establish that it was made bona fide.

B An order is made mala fide when it is not made for the purpose

laid down in the Act or the rules and

is made for an extraneous pur­

pose. The contention of the petitioner

to the effect that the deten­

tion order cannot be made on the satisfaction of the detaining

authority that it

is necessary to prevent him from acting in a man­

ner prejudicial to the maintenance of law and

order, in effect,

c amounts to the contention that it is made mala fide.

The detaining authority is free to establish that any defect in

the detention order

is of form only and not of substance, it being

satisfied of the necessity

to detain the

person for a purpose men­

tioned in r. 30 though the purpose has been inaccurately stated in

D the detention order. The existence of the satisfaction required

by r. 30 does not depend on what is said in the detention order,

and can be established by the District Magistrate by his affidavit.

We have therefore to examine whether the District Magistrate was

really satisfied about the necessity to detain Dr.

LOhia with a view

to prevent him from acting in a manner prejudicial to public safety

E and maintenance of public order.

The impugned order was passed under r. 30( I )(b) of the

rules. The District Magistrate decided to detain the appellant

with two objects, firstly, to prevent him from acting in any way

prejudicial to public safety and, secondly, to prevent him from

F acting in any way prejudicial to the maintenance of law and order.

The District Magistrate has--even in the absence of any such

contention

as under discussion and which was raised

after the filing

of the District Magistrate's affidavit-said that having regard to,

inter alia, the circumstances which were developing in Patna on

August 9, 1965, he was fully satisfied, in view of the report made

G by the Senior Superintendent of Police, Patna, in regard to Dr.

Lohia's conduct and activities, that it was necessary to direct that

he be detained in order to prevent him from acting further in any

manner prejudicial to the p~•blic safety and maintenance of public

order. There

is no reason to disbelieve his statement. His original

order, set out below, bears out this statement of

his in his later

H affidavit :

"Perused the report of the Senior S. P. Patna for

detention of Dr. Ram Manohar Lohia, M.P. under rule

75U SUPREME COURT REPORTS (1966] l S.C.R.

30(l)(b) of the Defence of India Rules, on the ground

that his being at large is prejudicial to the public safety

and maintenance of public order. From the report

of

the Sr. S.

P., Patna, I am satisfied that Dr. Ram Manohar

Lohia, M.P., aforesaid, be detained under rule 30 ( l)

(b) of the Defence of India Rules. Accordingly, I order

that Dr.

Ram Manohar Lohia be detained under rule

30

( 1 )(b) of the Defence of India Rules read with Notifi-

cation No. 180/CW dated 20-3-64 in the ilazaribagh

Central Jail until further orders."

A

B

'The District Magistrate's omission to repeat in the second sentence

111here he speaks of his satisfaction that Dr. Lohia be detained with C

a view to preventing him from acting prejudicially to the public

safety and maintenance of public order, does not mean that he

was not so satisfied when the earlier sentence makes reference to

the report of the Senior Superintendent of Polico for detaining

Dr. Lohia on the ground of his being at large to be prejudicial to

0

public safety and maintenance of public order.

The District Magistrate referred,

in para 3 of

his affidavit, to

his satisfaction that the forces of disorder which were sought to be

let loose, if not properly controlled, would envelop the whole State

of Bihar and possibly might spread in other parts of the country

which would necessarily affect the probrem of external defence as II

well in more ways than one. The possibilities of such force1 of

disorder spreading to other parts of the country satisfied him with

the necessity of taking immediate action to neutralize those forces.

It appears from his statements in paras 6 and 7 of the same affi.

davit that actual disturbances took place at Patna that day and

that he had to operate from the Control Room. In para 9 Ii. F

atates that the action taken against Dr. Lohia was purely for the

purpose of maintenance of public peace in the circlllilltances

stated by him earlier.

In his rejoinder affidavit Dr. Lohia states with reference to the

alleged forces of disorder referred to by the District Magiatrate G

that even if he was promoting what the executive would

call

'forces of disorder', he was doing so not with a view to impair the

defences

of the country but further to strengthen them, that the

various allegations made against him were extraneous

to

the

scope and purpose of the legislative provisions of the proclama­

tions of emergency which had no rational relationship to the H

circumstances which were developing in Patna on August 9,

1965.

,

-

•

•

'

•

•

•

-

•

•

B.. M. LOIDA v. STATE (Dayal, /.) 751

A Even in his original affidavit Dr. Lohia stated in para 6

B

that:

"It is also revealing to note that after the evenis of

the 9th August for which responsibility should have

been sought to be

fixed either through trial or enquiry,

on me or Government or anybody

else, I addressed a

crowd of nearly a lakh for over an hour after seven in

the evening."

The setting of the events that appear to have happe11ed at Pa~

on August 9, 1965 further bear out the statement of the Distnct

C Magistrate that he was satisfied of the necessity

to detain Dr.

Lohia

in order to prevent him from acting

in a manner prejudicial

to public order.

Further, the exr-ression 'maintenance of law and order' is not

used in cl. ( 1) of r. 30. The corresponding expression used

therein

is 'maintenance of public order'.

The two expressions are

D not much different. The expression 'public order' has been con­

strued by this Court in a

few cases, the latest of them being

The

Superintendent, Central Prison, Fatehgarh v. Ram Manohar

Lohia(

1

)

wherein it was said at p. 839 :

•

" 'Public order' is synonymous with public safety

and tranquillity: it is the absence of disorder involving

breaches of local significance in contradistinction to

national upheavals, such as revolution, civil strife, war,

affecting the security of the State."

The expression 'maintenance of law and order' would cover

F 'maintenance of public safety and tranquillity'. If may be, as

urged for the petitioner, an expression of wider import than

public order but, in the context

in which it is used in the deten­

tion order and in view of

its use generally, it should

be construed

to mean maintenance

of

law and order in regard to the mainte­

nance of public tranquillity. It is not usually used merely with

G reference to enforcement of law by the agency of the State pros&

curing offenders against any of the numerous laws enacted for the

purposes of a well-regulated society. Simple and ostensibly

minor incidents at times lead to widespread disturbance8 allecting

public safety and tranquillity .

H Reference may be made

to the case reported as

Sodhi Sham-

lher Singh v. State of Pepsu(

1

). In that case certain persons wen:

J. [1960] 2 C.S.R.821. 2. A.I.It .1954 S.e. 275.

752 SUPREME COURT llEPORTS (1966] l S.C.IL

detained under an order under s. 3 (1) of the Preventive Deten- A

tion Act, 1950, on grounds which, in substance, were that one of

them had published certain pamphlets whose circulation, in the

opinion of the Government, tended to encourage the Sikhs to

resort to acts of lawlessness and plunge the Hindus into a feeling

of utter frustration and discouragement and consequently to make

them take the law into their hands for the redress of their griev-

B

ances.

Section 3 (I) of the Preventive Detention Act, 1950,

reads:

"The Central Government or the State Government may­

( a) if satisfied with respect to any person that with

a view

to preventing him from acting in any C manner prejudicial to--

( i) the defence of India, the relations of India

with foreign powers,

or the security of

India, or

(ii) the security of the

State or the maintenance D

of public order, or

(iii) ....

(b) .... , make an order directing that such person

be detained."

This Court used the expression 'maintenance of law and order'

in

place of 'maintenance of public order' used ins. 3(l)(a)(ii)

at

three places in paras 4 and 5 of the judgment. I do not refer to

these to show that the Court has construed the expression 'main­

tenance of public order' as 'maintenance of law and order' but

to reinforce my view that the expression 'maintenance of law and

order'

is generally used for 'maintenance of public safety and

tranquillity' which

is covered by the expression 'public order'.

When this Court

used this expression in place of 'maintenance

of

public order' I cannot conclude, as urged by the petitioner, that

the District Magistrate's using the expression 'maintenance of law

and order' in place of 'maintenance of public order'

is any indi­

cation of the fact that he had not applied his mind

to the

require­

ments of the provisions of r. 30( 1) or had not actually come to

the conclusion that it

was necessary to detain Dr. Lohia with a

view to prevent him from acting in any manner prejudicial to the

maintenance of public order.

If the expression 'maintenance of Jaw and order' in the im­

pugned order be not construed as referring to 'maintenance of

public order' the impugned order cannot

be said to be invalid in

F

G

II

•

f

•

-

•

•

•

R. M. LOHIA v. STATE (Dayal, /.) 753

A view of it being made with a double objective, i.e., with the object

of preventing Dr. Lohia from acting prejudicially

to the

pub­

lic safety and from acting prejudicially to the maintenance of law

and order.

If the District Magistrate was satisfied, as the im­

pugned order and the affidavit of the District Magistrate

show

that he was satisfied that it was necessary to detain Dr. Lohia

B with a view to preventing him from acting prejudicially to public

safety, that itself

would have justified his passing the impugned

order. His satisfaction

with respect to any of the purposes men­

tioned

in r.

30 ( 1) which would justify his ordering the detention

of a person

is sufficient for the validity of the order. There is no

c room for considering that he might not have passed the impugned

order merely with one object in

view, the object being to

prevent Dr. Lohia from acting prejudicially to

public safety. The

entire circumstances in

which the order has been

made and which

I have referred to earli.er, point to that.

The question before

us is not really at par with the question

D that arose in Ramesh Thappar v. State of Madras('). In that

case the provisions impugned were those of a statute whose

lan­

guage authorised the passing of orders which could be constitu­

tional in certain circumstances and unconstitutional in others. In

such a context, it was said that where a law purports to authorize

the imposition of restrictions

on a fundamental right in language

E wide enough to cover restrictions both within and without the

limits of constitutionally permissible

legislative action affecting

such right, it

is not possible to uphold it even so far as it may be

applied within the constitutional limits, as it is not severable; so long as the possibility of its being applied for purpoes not sanc­

tioned by the Constitution cannot be ruled out, it must be held

F to be wholly unconstitutional and void. It was so held as, other­

wise, the orders passed for purposes not sanctioned by the Consti­

tution would have been in accordance with the law held valid.

The validity of the orders passed under a valid law-the Defence

of India Act and the rules have to be assumed to be valid-de-

G pends on their being made by the appropriate authority in accord­

ance with the law empowering it to pass the orders.

The question before

us is

also not at par with the question

which often arises in construing the validity of detention orders

passed under the Preventive Detention Act for the reason that

some of the grounds for the satisfaction of the appropriate autho-

H rity were irrelevant or non-existent. The presence of such grounds

raised the question whether the remaining good

grounds would

t.

[1950! S.C.R. 594.

L8Sup. C. & 1./65-S

754 SUPREME COURT REPORTS [1966] I S.C.R.

have led the authority to the requisite subjective satisfaction for

ordering detention.

In the present case, however, the question is

different. The question is whether the District Magistrate would

have made the order of detention on his satisfaction merely to the

effect that it

was necessary to detain Dr. Lohia with a view to

prevent

him from acting in a manner prejudicial to public safety.

It is not that his satisfaction is based on two grounds, one of

which

is

irrelevant or non-existent.

Even in such cases, this Court has held in

Dwarka

Da.J v.

State of J & K('):

"The principle underlying all these decisions is this.

Where power is vested

in a statutory authority to

de­

prive the liberty of a subject on its subjective satisfac­

tion with reference to specified matters, if that satis­

faction is stated to be based on a number of grounds

or for a variety of reasons, all taken together, and if

some out of them are found to be non-existent or irrele­

vant, the very exercis~ of that power is bad. That is

so because the matter being one for subjective satis­

faction, it must be properly based on all the reasons

on which it purports to be baszd. If some out" of

them are found to be non-existent

or irrelevant, the Coi:rt cannot predicate what the subjective satisfaction

of the said authority would have been

on the

exclu­

sion of those grounds or reasons. To uphold the

validity

of such an order in spite of the invalidity of

some of the reasons

or grounds would be to substitute

the objective standards of the Court for the subjective

satisfaction of the statutory authority. In applying

these principles, however, the Court must be satisfied

that the vague

or irrelevant grounds are such as, if

excluded, might reasonably have affected the

subjec­

tive satisfaction of the appropriate authority. It is not

merely because some ground or reason of a compara­

tively unessential nature is defective that such an order

based on subjective satisfaction can be held to be in­

valid."

As stated earlier, there does not appear to be any reason why

the District Magistrate would not have passed the order of deten-

A

B

c

D

G

tion against Dr. Lohia on his satisfaction that it was necessary to II

prevent him from acting prejudicially to public safety. On such

t. A.l.R. 19S7 S.C. 164, 168.

I

•

•

•

R. M. LOffiA v. STATE (Mudho/kar, l.) 755

A satisfaction, it was incumbent on him to pass the order and he

must have passed it.

I am therefore of opinion that the District Magistrate made

the impugned detention order on his being satisfied that it was

necessary

to do so with a view to prevent Dr. Lohia from acting

B in a manner prejudicial to public safety and maintenance of

public order and that the impugned order

is valid. Consequently,

Dr. Lohia cannot move this Court for the enforcement of

llis

rights under arts. 21 and 22 of the Constitution in view cf the

President's Order under art. 359 ( 1) of the Constitution. I would

dismiss this petition.

D

Mudholkar, J. I agree that the petition of Dr. Ram Manohar

Lohia under Art. 32 of the Constitution

be granted and would

briefly indicate

my reasons for granting it.

At the outset I shall consider

an objection of Mr.

S. P. Vanna

on behalf of the State as to the tenability of the petition. The objec­

tion

is two-fold. In the first place, according to him, in view of

the

Proclamation made by the President under Art. 359 this Court

has no jurisdiction to entertain it.

In the second place his con­

tention is that the order of detention made against the petitioner

being one under the Defence of India Rules, he cannot challenge E the validity of his detention thereunder in any court. In support of

these contentions Mr. Varma relies on the decision of this Court

in

Mohan Choudhury v. Chief Commissioner,

Trip11ra (' ). In that

case this Court has, while holding that the right of a person whose

detention has been ordered under the Defence of India Rules to

move any court for the enforcement of his rights under Art. 21

F

G

of the Constitution is suspended during the continuance of the

cmeregency declared by the President

by a Proclamation under

Art. 352, held that the powers conferred on this Court by Art. 32

of the Constitution are not suspended.

It is true that where a

person has been detained under the Defence of India Rules he

cannot move this Court under Art. 32 for the enforcement of

his right under Art.

21 and so there will be no occasion for this

Court to exercise

its powers under that article in such a case. But

what would be the position in a case where an order for detention

purporting to be made under the

Defence of India Rules was itself

one which

was beyond the scope of the Rules ? For, before an

entry into the portals of this Court can be denied to detenu he

H must be shown an order under r.

30(1) of the Defence of India

Rules made by a competent authority stating that it

is satisfied

1. [1964] 3

S.C.R. 442.

7S6 SUPREME COURT REPORTS (1966] I S.C.R.

that the detenu is likely to indulge in activities which will be pre­

judicial to one

or more of the matters referred to in the rule. If

the detenu contends that the order, though it purports to be under

r.

30( I) of the Rules, was not competently made, this Court has

the detenu contends that the order. though it purports to be under

order if the Court

finds that it was not competently made or

was

ambiguous it must exercise its powers under Art. 32 of the Con­

stitution, entertain his petition thereunder and make an appropriate

order.

In this case the District Magistrate,

Patna purported to make

an order under

r.

30 ( I ) of the Defence of India Rules. The State

has placed on record copies of two orders : one

is said to have been

recorded by the District Magistrate on

his file and another which

was served on Dr. Lohia. We are not concerned with the former

because the operative order must be the one served on the detenu.

The District Magistrate may

well keep the former in the drawer

A

B

c

of bis table or alter it as often as he likes. It cannot, therefore, be

regarded as anything more than a draft order. The order which n

ftnally emerged from him and was served on the detenu would

thus be the only one which matters. The grounds for detention

given in the latter order arc that Dr. Lohia's being at large

is

pre­

judicial to public safety and maintenance of law and order. Under

r. 30( I) an order of detention of a person can be made "with a

view to preventing him from acting in any manner prejudicial to E

the defence ·of India and civil defence, public safety, the mainten­

ance of public order, India's relations with foreign powers, the

maintenance of peaceful conditions in any part of India, the

efficient conduct of military operations

or the maintenance of

sup­

plies and services essential to the life of the community". I find

it difficult to accept Dr. Lohia's argument that the appropriate

authority must entertain an apprehension that the person to be de­

tained is likely to participate in every one of the activities referred

F

to in the rule. To accept it would be, apart from making a depar­

ture from the rules of grammar, (for doing which no valid grounds

exist), making not only the rule in question but also

s. 3 of the

De­

fence of India Act where similar language is used almost ineffective. G

What has, however, to be considered

is his other argument. The

question posed by the argument

is whether an authority competent

to make an order under the aforesaid provision can make such an

order on the ground that the authority feels it necessary to prevent

a person from acting in any manner prejudicial to the maintenance

of law and order. The expression

"law and order" does not find

any place in the rule and is not synonymous with "public order".

It seems to me that "law and order" is a comprehensive expression

fl

,

•

'

A

B

c

D

E

F

G

R. M. LOIDA v. STATE (Mudholkar, J.) 757

in which would be included not merely public order, but matters

i;uch as public peace, tranquillity, orderliness in a locality or a

local area and perhaps some other matters. "Public order" is

something distinct from order or orderliness in a local area. Under

r. 30( 1) no power is conferred upon that authority to detain a

person on the ground that it

is necessary so to do in order to

pre­

vent that person from acting in a manner prejudicial to the main­

tenance of order in a local area. What is it that the District Magis­

trate, Patna had in mind when he ordered the detention of the

petitioner ? Was the apprehension entertained by the District

Magistrate that Dr. Lohia, if left

at large, was likely to do

some­

thing which will imperil the maintenance of public order generally

or was it that he apprehended that Dr. Lohia's activities may cause

disturbances in a particular locality? There is thus

an ambiguity

on the face of the order and, therefore, the order must

be held to

be bad. No doubt, the order also refers to the apprehension felt

by the District Magistrate about Dr. Lohia's acting in a manner

prejudicial

to public safety. But then the question arises, what is

it that weighed with the District Magistrate, the apprehension

re­

garding public safety or an apprehension regarding the maintenance

of law and order ? Again, would the District Magistrate have

made the order solely on the ground that he felt apprehension re­

garding the maintenance of public safety because of the activities

in which he thought Dr. Lohia might indulge ? It could well be

that upon the material before him the District Magistrate would

have refrained from making

an order under r.

30 solely upon the

first ground. Or on the other hand he would have made the order

solely upon that ground. His order, however, which is

the only

material on the basis of which

we can properly consider the matter

gives no indication that the District Magistrate would have been

prepared to make it only upon the ground relating

to public safety.

In the circumstances I agree with my brethren

Sarkar and Hidaya~

tullah that the order of detention cannot be sustained. I have not

referred to any decisions because they have already been dealt with

fully in the judgments of my learned brethren. In the result,

therefore, I allow the petition and direct

that Dr. Lohia be set at

liberty.

ORDER

In view of the majority opinion, we allow the Petition and order

H that the petitioner

be set at liberty.