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926

RAM JETHMALANI, ETC

v.

UNION OF INDIA, ETC.

June 19, 1984

[E.S. VENKATARAMIAH, J.]

Constitution of India_ i950, Article 32. National Security Act, 1980, Sectioh

3 and The Supreme Court Rules 1966, O.rder II rule 6 and Order, VII rule 4 (5).

Writ petitions assailing detention of de(enu ·.under National Security Act.-.

Vacatio11 Judge hearing petitions-Itnportant questions touching security of nation

and personal

/jberty involved-Larger Bench

hearing matter-Necessity of.

The petition_ers in their writ petitions to this Court assailed the deten­

tion of a member of the Sikh Community u·nder the National Security Act,

1980.

HELD: 1. These are not ordinary criminal cases involving'a few individuals.

coming from a smalt loca1ity. These a~e extraordinary cases involving serious

questions

of great public importance touching the security of the nation as well

as personal liberty of a

s,izeable section of the community. These cases hitve

to be dealt v.·ith differently from the usual cases which come up before this

Court. [927 C-D]

2. In handling these cases the highest judicial talent and statesmanship

are needed and hence. these cases cannot just be rejected reserving liberty to ·

the applica·nts to approach a Judicial Magistrate, a Sessions Judge or even the

High Court. Every step taken in these cases should serve as a healing touch

bringing solace .to all concerned and lessening by some degree the ,pain and

suffering through which the country and its peace-loving people have passed

and are passing. These proce~dings should "have the effect of assuaging the

outraged feelings of many who till now may not be aware of.what has actually

happened. [927 F-G]

3. The questions involved ·are too large and complex for the

shoulders of a Single Judge to bear. These and other cases of like nature should

be heard

by at least

seven learned Judges of this Court whose unquestioned

judicial authority, erudition and acumen would be, of great assistance in 'the

restoration of peace in one of the States known for valour, devotion, spirit of

sacrifice and sense of duty towards the country of the people residing in it.

[927 H ; 928 A]

4. Even ir' alle°'gations of serious offences against the Stat~ may_ 'be

forthcoming against the arrested ·persons, the Court n1ay stilt consider whether

it is not possible -enlarge

at least some of them,

who may be in 'a repentant

mood, on bail to facilitate early restoration of normalcy in the State. There

·may be many other things which may be done and they are within the domain

of the Judges, who may .hear these cases. Jf this Court in the end can succetd

in establishing peace· and ,harmony in ihe country, it would be its finest

!tour. {9280-H ; 929 A[ •

(Cases reffene~ to Larscr Jl~nch.)

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Ii.AM JETH MALANi v. UNION ( Venkataramiah, i.) 921

·ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos. 920 A

and 934 of 1984.

(Under article 32 of the Constitution of India)

P.R. Mri1ul, R.D. Agarwala and R.N. Poddar for the Appli­

cant/Respondent.

Miss 'Rani Jethma/ani, G.S. Cheema and Shailendra Bhardwaj

for the Opp. side/petitioners.

The 01der of the Court was delivered by

VENKATARAMIAH, · J; These cases are just two in number.

There may be many other cases

of this nature which

bave ,not yet

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reached this Court but may be filed shortly. These are not ordinary c

criminal cases irtvolving a few individuals . coming from a small

locality. These are extraordinary cases involving serious questions

of great public importance touching the security of the nation as

well as

pers'onal liberty of a sizeable section or the community,

many

of

whom· may have been made to believe by a dominant

section

of

sopiety, may be wrongly, that what they were doing was D

right and for that reason may not have been free agents. Hence

these cases have to be dealt with differently from the usual cases

which come up before this Court.

First a word

of caution. In the course of these proceedings

every word uttered on either side

of the Bar should be weighed

before it

is used. There is no room for heat and passion ; logic and

reason alone

.should rule the debates. There should be an all round

sympathy in dealing with the complex issues which

may arise for

determination. In handling' these cases the highest judicial talen~

and statesmanship are. needed and hence these cases cannot just be

rejected reserving liberty

to the applicants to approach a Judicial

Magistrate, a Sessions Judge or even the High Court. Every step

taken in these

c~ses should serve as a healing touch bringing solace

to all concerned and lessening by some degree the pain and suffer-

ing through which the country and its peace-loving people have

passed and are passing. These proceedings should have the effect

. of assuaging the outraged feelings of1nany who till now may not be

aware

of what has actually happened. Any amount of time spent

by the highest Court

of this land on these cases would not go in

vain. There

is no. duty more. sacred than this.

I, however, feel that the questions involved are too.large and

complex

for the shoulders of. a

Single Judge to bear. It is my

humble view that these and other cases of like nature should be

heard by at least seven learned Judges of this Court whose unques-.

tioned judicial authority, erudition and acumen would be

of

great

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92S SUPi.EME COURT REPOJ.TS \.19\4) 3 s.C. R..

assistance in the restoration of peace in one of our great States

known for the valour, the devotion, the spirit of sacrifice and the

sense of duty towards the country or' the people residing in it

May I say that th~r¢ can be no compromise on the following

matters, namely, unity and integrity

·Of

India, lhe secular and·

democratic form of the Indian Government arid the suprema~y of

the Indian Constitution ? They must be uppeld in any event. There

cannot be.any doubt abonnhe right of the established Government

to run the administration of the country. We should remember, that

India ·is

no doubt a

Union of States, but the boundarie,. of the

States are not unalterable. There is only one citizenship in India

and that all.of us.:. Indian citizens-belong to the whole oflndia

and the whole of India belongs to all of us, Man-made boundaries

, cannot divide us. Language, religion, caste and other factors can·

not be allowed to drive a wedge between one section and another.

Ir is good to 'remembeF here what Abrahaip. Lincoln said though in

another context in 1858, 'A house divided again~t itself cannot

stand'.· The issue now before . the Court · involves more than the

future of India .. Again to quote Lincoln from what he said in the

American context :

"It presents to tl'l.e whole family of man, the ~111estion

wnether a· constitutional republic or a democracy-a govern-

. ment of the people,

by the same people-can or cannot

maintain its territorial integrity,

agai.nst its own domestic

foes''..(')

Tue above words appear to be relevant in the present Indian

conteiot.too. ·

· The unfolding of facU in these cases may make those who

may have erred to realise where they hav; erred and how they have

erred. It may help the Court to suggest solutions for rectilying the

·undesirable effects of such errors, ,

Even if allegations of serious

·

offences against the State may be forthcoming against the arrested

persons, the Court may still consider whether it is not possible to

enlarge at least some of them,

who may be in a repentant mood,

on bail to facilitate early restoration

of normalcy in the

State. The

Court may at some stage have occasion to consider whether it

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(1) (Vide; The first message to the Congress after the fall of Fort Sumter r

during the American civil \Var). ·

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ll.AM JETHMALANI v. UNION (Venkataramiah, J.) 929

should recommend to Parliament to pass an Act of Indemnity which

may be an act

of great sagacity, thus drawing the curtain on this

un·

happy page of the. history of tb!indian Republic. These may be many

other things which may be done and they are within the domain of

my learned Brothers who may hear these cases. -If this Court.in the

end.cah succeed in establishing peace and harmony in the country,

it would be its finest hour.

I, therefore, refer these cases to a larger. Bench with the fond

hope that our country would have no occasion .in the future to face

a similar situation.

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These papers may be placed before the Hon'ble the Chief

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Justice of India fot appropriate directions.

N.V.K . Cases referred to larger bench.

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