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PETITIONER:

RAM SINGH

Vs.

RESPONDENT:

THE STATE OF DELHI AND ANOTHERBALRAJ KHANNAv.THE STATE OF DE

DATE OF JUDGMENT:

06/04/1951

BENCH:

SASTRI, M. PATANJALI

BENCH:

SASTRI, M. PATANJALI

KANIA, HIRALAL J. (CJ)

MAHAJAN, MEHR CHAND

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1951 AIR 270 1951 SCR 451

CITATOR INFO :

RF 1954 SC 92 (39)

R 1958 SC 578 (155)

E 1958 SC 731 (17)

R 1960 SC 554 (20)

RF 1961 SC 232 (55)

R 1962 SC1006 (79)

R 1963 SC1047 (19)

RF 1967 SC 1 (42,138)

RF 1967 SC1643 (274)

O 1970 SC 564 (53)

RF 1973 SC1461 (1525)

E&R 1978 SC 597 (52,41,66,ETC.)

E 1980 SC 898 (52,49)

ACT:

Constitution of India, Arts. 19 (1) & (2), 22

(5)--Freedom of speech--Preventive detention to prevent

speeches with a view to maintain public order-- Omission to

state objectionable passages in grounds supplied--Legality

of detention.

HEADNOTE:

The District Magistrate of Delhi, "being satisfied that

with a view to the maintenance of public order in Delhi it

is necessary to do so" ordered the detention of the peti-

tioners under s. 3 of the Preventive Detention Act, 1950.

The grounds of detention communicated to the petitioners

were "that your speeches generally in the past and particu-

larly on the 13th and 15th August, 1950, at public meetings

in Delhi has been such as to excite disaffection between

Hindus and Mussalmans and thereby prejudice the maintenance

01 public order in Delhi and that in order to prevent you

from making such speeches it is necessary to make the said

order." The petitioners contended that under the Constitu-

tion the maintenance of public order was not a purpose for

which restriction can be imposed on the freedom of

452

speech guaranteed by Art. 19 (1) and that the grounds commu-

nicated were too vague and indefinite to enable them to make

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a representation and the provisions of Art. 22 (s) of the

Constitution were not complied with, and their detention was

therefore ultra vires and illegal:

Held by the Full Court (KANIA C.J., PATANJALI SASTRI,

MEHR CHAND MAHAJAN, S.R. DAs and VIVIAN BOSE JJ.) that

though personal liberty is sufficiently comprehensive to

include the freedoms enumerated in Art. 19 (1) and its

deprivation would result in the extinction of those free-

doms, the Constitution has treated these civil liberties as

distinct fundamental rights and made separate provisions in

Arts. 19, 21 and 22 as to the limitations and conditions

subject to which alone they could be taken away or abridged.

Consequently, even though a law which restricts freedom of

speech and expression which is not directed solely against

the undermining of the security of the State or its over-

throw but is concerned generally in the interests of public

order may not fall within the reservation of cl. (2) of Art.

19 and may therefore be void, an order of preventive deten-

tion cannot be held to be invalid merely because the deten-

tion is made with a view to prevent the making of speeches.

prejudicial to the maintenance of public order. The deci-

sions in Brij Bhushan and Another v. The State of Delhi (1)

and Romesh Thappar v. The State of Madras(2) are not incon-

sistent with the decision in A.K. Gopalan v. The State(3).

Held per KANIA. C.J., PATANJALI SASTRI and S.R. DAS JJ.

(MEHR CHAND MAHAJAN and BOSE JJ. dissenting)--As the time

and place at which the speeches were alleged to have been

made and their general nature and effect,. namely, that they

were such as to excite disaffection between Hindus and

Muslims were also stated in the grounds communicated, they

were not too vague or indefinite to enable the petitioners

to make an effective representation and the detention cannot

be held to be illegal on the ground that Art. 22 (8) was not

complied with. Per CHAND MAHAJAN and BOSE JJ. (contra)--In

the absence of any indication in the grounds as to the

nature of the words used by the petitioners in their speech-

es, from which an inference has been drawn against them, the

petitioners would not be able fully to exercise their funda-

mental right of making a representation, and as there were

no such indications in the grounds supplied, there was a

non-compliance with the provisions of el. (5) Art. 22 and

the detention was illegal.

The State of Bombay v. Alma Ram Sridhar Vaidya(4) applied.

JUDGMENT:

ORIGINAL JURISDICTION: Petitions Nos. 21, 22 and 44 of 1951.

(1) [1950] S.C.R. 605. (3) [1950] S.C.R. 88.

(2) [1950] S.C.R. 594, (4) [1950] S.C.R. 167.

453

Applications under Art. 32 of the Constitution praying

for the issue of writs in the nature of habeas corpus.

Hardayal Hardy for the petitioners in Petitions Nos. 21

and 22

Gopal Singh for the petitioner in Petition No. 44.

S.M. Sikri for the respondents.

1951. April 6. The following judgments were deliv-

ered.

PATANJALI SASTRI J.--These three petitions have been pre-

sented to this Court under article 32 of the Constitution of

India praying for the issue of writs in the nature of habeas

corpus for release of the petitioners who are respectively

the President, VicePresident and Secretary of the Hindu

Mahasabha of the Delhi State.

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The petitioners were arrested on 22nd August, 1950, by

order of the District Magistrate, Delhi, made under sub-

section (2) read with clause (a) sub-clause (i) of sub-

section (1) of section 3 of the Preventive Detention Act,

1950 (hereinafter referred to as the Act). The order ran as

follows:

"Whereas I, Rameshwar Dayal, District Magistrate, Delhi,

am satisfied that with a view to the maintenance of public

order in Delhi it is necessary to do so, I, Rameshwar Dayal,

District Magistrate, Delhi, hereby order the detention

of ............ under sub-section (2) of section 3 (1) (a)

(ii) of the Preventive Detention Act. Given under my seal

and signature".

The grounds of detention communicated to the petitioners

were in identical terms, save as to the dates on which the

speeches were said to have been made, and read thus:

"In pursuance of section 7 of the Preventive Detention

Act you are hereby informed that the grounds on which the

detention order dated 22nd August, 1950, has been made

against you are that your speeches generally in the past and

particularly on ...... August,

454

1950, at public meetings in Delhi has been such as to excite

disaffection between Hindus and Muslims and thereby preju-

dice the maintenance of public order in Delhi and that in

order to prevent you from making such speeches it is neces-

sary to make the said order".

The petitioners applied to the High Court at Simla for

similar relief under article 226 of the Constitution, but

the petitions were dismissed. It appears to have been con-

tended before the learned Judges (Khosla and Falshaw JJ.)

who heard those petitions that although this Court held in

A.K. Gopalan v. The State of Madras (1) that the provisions

of section 3 of the Act were constitutional and valid,

detention under that section was ultra vires and illegal

where, as here, it was based on the ground of making speech-

es prejudicial to the security of the State or the mainte-

nance of public order. This was said to be the result of

the later pronouncements of this Court in Brij Bhushan and

Another v. The State of Delhi (2) and Romesh Thappar v. The

State of Madras (3). This contention was rejected on the

ground that no such proviso could be read into section 3 on

the strength of the later decisions referred to above which

related to a different point, viz., the scope of authorised

restrictions on the right to freedom of speech conferred by

article 19 (1). Falshaw J. (with whom Khosla J. concurred),

proceeded, however, to draw attention to what he conceived

to be an' 'anomaly' '--while a State Government should not

be allowed to interfere with the freedom of the press by way

of stopping the circulation of newspapers or by pre-censor-

ship of news, the Government should, for the same object, be

entitled to place a person under preventive detention which

is "even greater restriction on personal liberty than any

restriction on a newspaper ever could be". This distinction

appeared to the learned Judge to be illogical, and he

thought that there was "an apparent conflict" between the

decisions of this Court in Gopalan's case (1) and the other

cases, which could only be resolved by this Court. "It

(1) [1950] S.C.R. 88. (3) [1950] S.C.R. 594,

(2) [1950] S.C.R. 605.

455

would be well" the learned Judge concluded "if the point

were raised in this form at an early date in the Supreme

Court".

No wonder that, after this encouragement, the peti-

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tioners have preferred these petitions raising the same

contention before us. On behalf of the petitioners Mr.

Hardy submitted that the provisions of the Act should not be

used to prevent a citizen from making speeches though they

might be considered to be prejudicial to the maintenance of

public order, for maintenance of public order is not a

purpose for which imposition of a restriction on freedom of

speech is authorised by the Constitution, as held by this

Court in the Cross-roads(1) and the Organizer(2) cases. It

is true that in those cases this Court decided by a majority

of 5 to 1 that "unless a law restricting freedom of speech

and expression is directed solely against the undermining of

the security of the State or the overthrow of it such law

cannot fall within the reservation of clause (2) of article

19 although the restrictions which it seeks to impose may

have been conceived generally in the interests of public

order". But it will be noticed that the Statutory provi-

sions which were there declared void and unconstitutional

authorised the imposition, in the one case, of a ban on the

circulation of a newspaper and, in the other, of pre-censor-

ship on the publication of a journal. No question arose of

depriving any person of his personal liberty by detaining

him in custody, whereas here, as in Gopalan's case(s), the

Court is called upon to adjudge the legality of the deten-

tion of the petitioners with a view to prevent them from

making speeches prejudicial to the maintenance of public

order Although personal liberty has a content sufficiently

comprehensive to include the freedoms enumerated in article

19 (1), and its deprivation would result in the extinction

of those freedoms, the Constitution has treated these civil

liberties as distinct fundamental rights and made separate

provisions in article 19 and articles 21 and 22 as to the

limitations and conditions subject to which

(1) [1950] S.C.R. 594. (3) [1950] S.C.R. 88.

(2) [1950] S.C.R. 605.

59

456

alone they could be taken away or abridged. The interpreta-

tion of these articles and their correlation were elaborate-

ly dealt with by the full Court in Gopalan's case(1). The

question arose whether section 3 of the Act was a law impos-

ing restrictions on "the right to move freely throughout the

territory of India" guaranteed under article 19 (1) (d) and,

as such, was liable to be tested with reference to its

reasonableness under clause (5) of that article. It was

decided by a majority of 5 to 1 that a law which authorises

deprivation of personal liberty did not fall within the

purview of article 19 and its validity was not to be judged

by the criteria indicated in that article but depended on

its compliance with the requirements of articles 21 and 22,

and as section 3 satisfied those requirements, it was con-

stitutional. If the learned Judges in the High Court had

paid close attention to the judgments delivered in this

Court, they would have found that there was nothing illogi-

cal in that view and no conflict between the decisions in

that case and in the other cases to which reference has been

made. The observations of the Chief Justice in Gopalan's

case(1) make the position quite clear:

" As the preventive detention order results in the deten-

tion of the applicant in a cell it was contended on his

behalf that the rights specified in article 19 (1) (a), (b),

(c), (d), (e), and (g)have been infringed. It was argued

that because of his detention he cannot have a free right to

speech as and where he desired and the same argument was

urged in respect of the rest of the rights mentioned in

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sub-clauses (b), (c), (d), (e) and (g). Although this

argument is advanced in a case which deals with preventive

detention, if correct, it should be applicable in the case

of punitive detention also, to any one sentenced to a term

of imprisonment under the relevant section of the Indian

Penal Code. So considered, the argument must clearly be

rejected. In spite of the saving clauses (2) to (6), permit-

ting abridgement of the rights connected with each of them,

punitive detention under several sections of the Penal Code,

e.g., for theft, cheating, forgery and even

(1) [1950] S.C.R. 88.

457

ordinary assault, will be illegal. Unless such conclusion

necessarily follows from the article, it is obvious that

such construction should be avoided. In my opinion, such

result is clearly not the outcome of the Constitution. The

article has to be read without any preconceived notions. So

read, it clearly means that the legislation to be examined

must be directly in respect of one of the rights mentioned

in the sub-clauses. If there is a legislation directly

attempting to control a citizen's freedom of speech or

expression, or his right to assemble peaceably and without

arms, etc., the question whether that legislation is saved

by the relevant saving clause of article 19 will arise. If,

however, the legislation is not directly in respect of any

of these subjects, but as a result of the operation of other

legislation, for instance, for punitive or preventive deten-

tion, his right under any of these sub-clauses is abridged,

the question of the application of article 19 does not

arise. The true approach is only to consider the directness

of the legislation and not what will be the result of the

detention otherwise valid, on the mode of the detenu's life.

On that short ground, in my opinion, this argument about the

infringement of the rights mentioned in article 19 (1)

generally must fail. Any other construction put on the

article, it seems to me, will be unreasonable."(1)

Similar conclusions expressed by the other learned

Judges will be found at pages 194, 229, 256 and 305. It

follows that the petitions now before us are governed by the

decision in Gopalan's case(1), notwithstanding that the

petitioners' right under article 19 (1)(a) is abridged as a

result of their detention under the Act. The anomaly, if

anomaly there be in the resulting position, is inherent in

the structure and language of the relevant articles, whose

meaning and effect as expounded by this Court by an over-

whelming majority in the cases referred to above must now be

taken to be settled law, and courts in this country will be

serving no useful purpose by discovering supposed conflicts

and illogicalities and recommending parties to re-agitate

the points thus settled.

(1) [1950] S.C.R. 88, 100-101.

458

Mr. Hardy next contended that, in view of the recent

decision of this Court in The State of Bombay v. Atma Ram

Sridhar Vaidya(1), the grounds of detention communicated to

each of the petitioners must be held to be too vague and

indefinite to enable them to make their "representations" to

the Chief Commissioner, Delhi, and the requirements of

clause (5)of article 22 not having thus been complied with,

the petitioners were entitled to be set at liberty. Accord-

ing to Mr. Hardy it was not sufficient that the time and

place of the alleged speeches and their general effect were

indicated, but it was also necessary that the offending

passages or at least the gist of them should be communicated

in order to enable the petitioners to make effective repre-

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sentations.

In the case relied on, this Court, no doubt, held by a

majority that, though the first part of article 22 (s),

which casts an obligation on the detaining authority to

communicate the grounds of the order of detention would be

sufficiently complied with if the" deductions or conclusions

of facts from facts" on which the order was based were

disclosed, the latter part of the clause, which confers on

the person detained the right of making a "representation"

against the order, imposed, by necessary implication, a duty

on the authority to furnish the person with further particu-

lars to enable him to make his representation. It was

further held that the sufficiency of this "second communica-

tion" of particulars was a justiciable issue, the test being

whether "it is sufficient to enable the detained person to

make a representation which, on being considered, may give

relief to the detained person." While the communication of

particulars should, subject to a claim of privilege under

clause (6), be" as full and adequate as the circumstances

permit", it did not, however, follow from clause (6) that

"what is not stated or considered to be withheld on that

ground must be disclosed and if not disclosed there is a

breach of a fundamental right. A wide latitude is left to

the authorities in the matter of disclosure." Referring to

the use of the term

(1) [1951] S.C.R. 167.

459

"vague" in this connection,. it was remarked: "If on reading

the ground furnished it is capable of being intelligently

understood and is sufficiently definite to furnish materials

to enable the detained person to make a representation

against the order of detention, it cannot be called vague"

This decision does not, in our opinion, support the

broad proposition contended for by Mr. Hardy that wherever

an order of detention is based upon speeches made by the

person sought to be detained, the detaining authority should

communicate to the person the offending passages or at least

the gist of such passages on pain of having the order

quashed if it did not. In the cases now before us the time

and place at which the speeches were alleged to have been

made were specified and their general nature and effect

(being such as to excite disaffection between Hindus and

Muslims) was also stated. It is difficult to see how the

communication of particular passages or their substance -

one of the petitioners denied having made any speech on the

day specified--was necessary in addition to the particulars

already given, to enable the petitioners to make their

representations. It should be remembered in this connection

that the Court is not called upon in this class of cases to

judge whether or not the speech or speeches in question

constituted a prejudicial act falling within the purview of

section 3 of the Act as it is called upon in prosecutions

for offences under section 124A or section 153A of the

Indian Penal Code to find whether the speech attributed to

the accused person constituted an offence under those sec-

tions. That is a matter for the detaining authority to be

satisfied about. Nor do these cases belong to the category

where a reference had to be made to the Advisory Board under

the Act, so that any attempt by the petitioners to rebut the

inference drawn by the detaining authority from their

speeches had to be made only before the executive authori-

ties. In such circumstances the suggestion that without the

communication of the offending passages or their substance

the petitioners were not in a position to make their repre-

sentations

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460

to the executive authorities sounds unreal and is devoid of

substance. It may be possible to conceive of peculiar

situations where perhaps the person detained on ground of

prejudicial speeches might be in a better position to make a

representation if he was given the objectionable passages or

the gist of them, but the present cases are not of such

peculiar character. On the other hand, cases have come

before this Court where speeches were alleged to have been

made after midnight at secret gatherings of kisans and

workers inciting them to violence, crime and disorder. Such

allegations could only be based in most cases on information

received by the executive authorities from confidential

sources and it would not be practicable in all such cases to

have a record made of the speeches delivered. To hold that

article 22 (5) requires that, wherever detention is grounded

on alleged prejudicial speeches, the detaining authority

should indicate to the person detained the passages which it

regards as objectionable would rob the provisions of the Act

of much of their usefulness in the very class of cases where

those provisions were doubtless primarily intended to be

used and where their use would be most legitimate. In the

case of these petitioners, no doubt, the speeches are said

to have been made at public meetings, and it is not suggest-

ed on behalf of the respondents that no record was made of

the speeches, so that the details asked for could have been

furnished. The omission to do so, for which no reason is

disclosed in these proceedings, is regrettable, as it has

given rise to avoidable grievance and complaint. The au-

thorities who feel impelled in discharge of their duty to

issue orders of detention will do well to bear in mind the

following remarks of the Chief Justice in the case referred

to above:

"In numerous cases that have been brought to our notice,

we have found that there has been quite an unnecessary

obscurity on the part of the detaining authority in stating

the grounds for the order. Instead of giving the information

with reasonable details, there is a deliberate attempt to

use the minimum number

461

of words in the communication conveying the grounds of

detention. In our opinion, this attitude is quite deplora-

ble".

This, however, does not affect our conclusion in these

cases that the grounds communicated to the petitioners

contain sufficient particulars to enable them to make their

representations to the authority concerned, and that the

requirements of article 22 (5) have thus been complied with.

It is also urged that the orders of detention were bad

because they did not specify the period during which the

petitioners were to be under detention. This point is now

concluded against the petitioners by the decision of this

Court in Ujager Singh v. The State of Punjab (1) and Jagjit

Singh v. The State of Punjab (2) where it was pointed out

that as section 12 of the Act itself prescribed a maximum

period of one year for detention thereunder, such orders

could not be said to be of indefinite duration and unlawful

on that ground.

Lastly, it was said that the petitioners were prominent

members of a political organisation which was opposed to the

ideals and policies of the party in power, and that the

orders of detention were made "for the collateral purpose of

stifling effective political opposition and legitimate

criticism of the policies pursued by the Congress Party and

had nothing to do with the maintenance of public order".

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Allegations of mala fide conduct are easy to make but not

always as easy to prove. The District Magistrate has, in

his affidavit filed in these proceedings, stated that, from

the materials placed before him by persons experienced in

investigating matters of this kind, he was satisfied that it

was necessary to detain the petitioners with a view to

preventing them from acting in a manner prejudicial to the

maintenance of public order, and he has emphatically repudi-

ated the purpose and motive imputed to him. We have thus

allegations on the one side and denial on the other, and the

petitioners made no attempt to discharge the burden, which

undoubtedly lay upon them, to prove that the District

(1) Petition No. 149 of 1950. (2) Petition No. 167 of 1950.

462

Magistrate acted mala fide in issuing the orders of deten-

tion.

The petitions are dismissed.

MAHAJAN J.--These three petitions under article 82 of

the Constitution of India were presented by Prof. Ram Singh,

Bal Raj Khanna and Ram Nath Kalia, all three of whom were

arrested and placed in detention on the 22nd August, 1950,

under the orders of the District Magistrate of Delhi, under

the Preventive Detention Act, 1950. The petitioners are

respectively, the President, Vice-President and the Secre-

tary of the Delhi State Hindu Mahasabha. The grounds of

detention supplied to them are almost identical. Those

furnished to Prof. Ram Singh read as follows :--

"In pursuance of section 7 of the Preventive Detention

Act, you are hereby informed that the grounds on which the

detention order dated August 22, 1950, has been made against

you are that your speeches generally in the past and partic-

ularly on the 13th and 15th August, 1950, at public meetings

in Delhi have been such as to excite disaffection between

Hindus and Muslims and thereby prejudice the maintenance of

public order in Delhi and that in order to prevent you from

making such speeches it is necessary to make the said order.

You are further informed that you are entitled to make a

representation against your detention to the State Govern-

ment, that is, the Chief Commissioner, Delhi."

The grounds supplied to the other two petitioners were

the same except that in the case of Bal Raj Khanna only

the 15th August, 1950, is mentioned as the date on which

the public speech was made, and in the case of the third

petitioner, it is only the 13 th August, 1950.

Mr. Hardy on behalf of the petitioners. inter alia urged

that the grounds served on the petitioners as justifying the

orders of detention are quite indefinite and are not suffi-

cient to enable them to make an effective representation to

the State Government against

463

their detention and that being so, their detention is ille-

gal.

An affidavit of the District Magistrate was placed

before us at the hearing of the cases stating that he was

satisfied that the petitioners' speeches generally, and

particularly those made on the 13th and 15th August, 1950,

at public meetings in Delhi had been such as to excite

disaffection between Hindus and Muslims. No particulars of

the offending words or passages or any indication of the

nature of the language employed by the petitioners was

mentioned either in the grounds or in this affidavit.

Reference was made to two speeches of the 13th and 15th in

the case of the first petitioner and to only one speech

delivered on the 13th and 15th respectively by the other

two. So far as the earlier speeches are concerned, it is not

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even stated on what occasions, on what dates and during what

years were those speeches made or delivered. After a refer-

ence to the dates of the two speeches, the conclusion drawn

by the District Magistrate has been mentioned. The question

for decision is whether what is stated in the grounds is

sufficient material on the basis of which the fundamental

right conferred on the petitioners by article 22 (5) of the

Constitution can be adequately exercised and whether without

knowing the substance of the offending passages in the

speeches from which the inference has been drawn by the

District Magistrate it is possible to prove that this infer-

ence is not justified.

After considerable thought I have reached the decision

that these cases fall within the ambit of the decision of

this Court in The State of Bombay v. Atma Ram Shridhar

Vaidya (1). In that case certain general principles ap-

plicable to cases of this nature were stated by the learned

Chief Justice, who delivered the majority judgment, in the

following terms:

(1) That if the representation has to be intelligible to

meet the charges contained in the grounds, the information

conveyed to the detained person must

(1) [1951] S.C.R. 167.

60

464

be sufficient to attain that object. Without getting infor-

mation sufficient to make a representation against the order

of detention it is not possible for the man to make the

representation. Indeed, the right will be only illusory but

not a real right at all.

(2) That while there is a connection between the obliga-

tion on the part of the detaining authority to furnish

grounds and the right given to the detained person to have

an earliest opportunity to make the representation, the test

to be applied in respect of the contents of the grounds for

the two purposes is quite different. For the first, the test

is whether it is sufficient to satisfy the authority. For

the second, the test is, whether it is sufficient to enable

the detained person to make the representation at the earli-

est opportunity. On an infringement of either of these two

rights the detained person has a right to approach the court

and to complain that there has been an infringement of a

fundamental right and even if the infringement of the second

part of the right under article 22(5) is established he is

bound to be released by the court.

(3) That it cannot be disputed that the representation

mentioned in the second part of article 22(5) must be one

which on being considered may give relief to the detaining

person. It was pointed out that in the numerous cases that

had been brought to the notice of the court it was found

that there had been quite an unnecessary obscurity on the

part of the detaining authority in stating the grounds for

the order, and that instead of giving the information with

reasonable details, there is a deliberate attempt to use the

minimum number of words in the communication conveying the

grounds of detention and that such an attitude was quite

deplorable.

In my opinion, these observations have an apposite

application to the grounds furnished to the petitioners in

the present cases. The speeches alleged to have been made

by the petitioners were made in public meetings and could

not be described as of a confidential nature and no privi-

lege in respect of them was

465

claimed under article 22 (6) of the Constitution. That

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being so, the material on the basis of which the District

Magistrate drew the inference that these speeches would

cause or were likely to cause disaffection amongst Hindus

and Muslims should have been communicated to the petitioners

so that they may be able to make a representation, which on

being considered may give relief to them. For that purpose

either the words used by them or the substance of the

speeches should have been communicated to the detenus so

that they may be able to prove that such words or passages

never formed part of the speeches and have been introduced

in them as a result of some error or that no reasonable

person could draw an inference from them that those were

likely to cause hatred and enmity between the two communi-

ties. The sufficiency of the material supplied is a justi-

ciable issue, though the sufficiency of the grounds on which

the detaining authority made up his mind is not a justicia-

ble issue. In my opinion, in the absence of any indication

in the grounds as to the nature of the words used by the

detenus in their speeches from which an inference has been

drawn against them they would not be able fully to exercise

their fundamental right of making a representation and would

not be able to furnish a proper defence to the charge made

against them.

Envisaging oneself in the position of a person asked to

draw out a written representation on behalf of the detenus

on the materials supplied to them, the effort could not

proceed beyond a bare denial of the speeches having been

made, or a bald statement that no words were used which

could possibly excite disaffection between Hindus and Mus-

lims. Such a representation would be an idle formality

inasmuch as mere denials without any cogent arguments to

support them would convince nobody. Without a knowledge of

the offending words or passages, or their substance, it is

not possible to argue that the inference drawn is not a

legitimate one or to allege that the words used fall within

the ambit of legitimate criticism permissible in law and

cannot be considered to excite disaffection

466

amongst Hindus and Muslims. The phraseology employed by the

detaining authority in the charge sheet supplied to the

detenus seems to have been borrowed from the language used

in sections 124A and 153A of the Indian Penal Code. Judicial

literature abounds in cases where words and passages likely

to cause disaffection between Hindus and Muslims or which

have that effect have been considered and discussed. In the

words objected to were known, the representation on behalf

of the detenus could easily have been drawn up with the help

of judicial precedents and reasoning considered good in

those cases. Again, without knowing the substance of the

offending words from which the inference has been drawn by

the detaining authority it is not even possible to urge that

these words were merely a quotation from some known author

or that the words used fall within legitimate religious

propaganda permitted by article 25 of the Constitution or

concern the propagation of some political creed to which no

objection could be taken. As regards the two speeches

alleged to have been given by the detenus, if the allegation

that they were such as to excite disaffection between Hindus

and Muslims is correct, the detenus were guilty of the

offence under section 153A of the Indian Penal Code and

could not only have been punished for the offence under that

section but could also have been kept out of harm's way for

the future by that procedure. A charge sheet under that

section or in a trial under section 124A which uses analo-

gous language would have been defective if it did not men-

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tion the substance of the speeches alleged to have been made

by the person charged. [Vide Chint Ram v. Emperor (1);

Chidambaram Pillai v. Emperor(2); Mylapore Krishnaswami v.

Emperor(3).] In some of these cases the charge was in

substance similar to the charge here. If a charge in an

open trial for an offence under these sections is defective

without the substance of the words used or the passages

being cited therein, a fortiori, the material supplied in a

preventive

(1) A.I.R. 1931 Lah. 186. (3) I.L.R. 32 Mad. 384.

(2) I.L.R. 32 Mad. 3.

467

detention case on a similar charge should be regarded as

insufficient when a man has not even a right of being heard

in person and has merely to defend himself by means of a

written representation. It has to be remembered in this

connection that the phrase "excite disaffection amongst

Hindus and Muslims" is of a very general nature and an

inference of this kind may easily have been drawn on materi-

al which would not warrant such an inference. No reason

whatsoever has been stated in the affidavit of the District

Magistrate for not disclosing the words used by the detenus

even after 'this length of time and from which he drew the

conclusions on the basis of which he has kept the petition-

ers under detention for a period well over six months or

more.

For the reasons given above I venture to dissent from

the opinion of the majority of the Court with great respect

and hold that the detention orders above mentioned are

illegal. I accordingly order the release of the petition-

ers. On the other points argued in the case I agree with

judgment of Sastri J.

BOSE J.--I agree with my brother Mahajan whose judgment

I have had the advantage of reading, and with the utmost

respect find myself unable to accept the majority view. I

am of opinion that these petitioners should all be released

on the ground that their detentions are illegal.

I do not doubt the right of Parliament and of the execu-

tive to place restrictions upon a man's freedom. I fully

agree that the fundamental rights conferred by the Constitu-

tion are not absolute. They are limited. In some cases the

limitations are imposed by the Constitution itself. In

others, Parliament has been given the power to impose fur-

ther restrictions and in doing so to confer authority on the

executive to carry its purpose into effect. But in every

case it is the rights which are fundamental, not the limita-

tions; and 'it is the duty of this Court and of all courts

in the land to guard and defend these rights jealously. It

is our duty and privilege to see that rights which were

468

intended to be fundamental are kept fundamental and to see

that neither Parliament nor the executive exceed the bounds

within which they are confined by the Constitution when

given the power to impose a restricted set of fetters on

these freedoms; and in the case of the executive, to see

further that it does not travel beyond the powers conferred

by Parliament. We are here to preserve intact for the peo-

ples of India the freedoms which have now been guaranteed to

them and which they have learned through the years to cher-

ish, to the very fullest extent of the guarantee, and to

ensure that they are not whittled away or brought to nought

either by Parliamentary legislation or by executive action.

It is the right to personal freedom which is affected

here: what the Constitution calls the "right to move freely

throughout the territory of India." Now I do not for a

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moment deny the right of Parliament to place limitations

upon that right and to do it by preventive detention. Much

as all freedom loving persons abhor the thought of locking

men and women up without trial and keeping them behind bars

indefinitely, the regrettable necessity to do so is to my

mind undoubted. The safety of the State, which is para-

mount, requires it and, in any event, the Constitution

allows it but--and this is important--subject to limita-

tions.

So far as the Constitution is concerned, it has given

Parliament the power to legislate on this subject by article

246 read with item 9 of List I of the 7th Schedule and item

a in List III, and I have no doubt that the legislation

sought to be impugned here is intra vires. But I am unable

to hold that the executive action taken in these cases on

the strength of that legislation is within the law. The

executive has no power to detain except within the four

corners of the Constitution and the Act now challenged. In

my, opinion, it has not kept itself within those limits.

The provisions of the Constitution relevant to the

present purpose have been examined by this Court in previous

cases and I have neither the right-nor the desire to go

behind them. My brother Mahajan has

469

set out his view of the law which these cases have settled.

I respectfully agree with him and will not cover the same

ground. But I do wish to say this. I am not prepared to

place any narrow or stilted construction either upon the

Constitution or upon the decisions of this Court which have

so far interpreted it. If it were permissible to go behind

file Constitution and enquire into the reason for the provi-

sions dealing with the fundamental rights, one would find

them bound up with the history of the fight for personal

freedom in this land. But that is not permissible and is

irrelevant. What does matter is that the right to personal

freedom has been made fundamental and that the power even of

Parliament itself to hedge it round with fetters is

"cribbed, cabined and confined". I conceive it to be our

duty to give the fullest effect to every syllable in the

Articles dealing with these rights. I do not mean to say

that any impossible or extravagant construction should be

employed such as would make the position of Government

impossible or intolerable. But I do insist that they should

be interpreted in a broad and liberal sense so as to bring

out in the fullest measure the purpose which the framers of

the Constitution had in mind as gathered from the language

they used and the spirit their words convey, namely to

confer the fullest possible degree of personal liberty upon

the subject consistent with the safety and welfare of the

State. My Lord the Chief Justice has pointed out in The

State of Bombay v. Atma Ram Shridhar Vaidya (1) that the

information supplied to the detenu must be sufficient to

enable him to meet the charges contained in the grounds

given to him. and that without that the right would be

illusory. Are the present cases covered by that rule ? I do

not think they are. Put at their highest, the grounds set

out the date and place of the meetings at which the speeches

complained of are said to have been made and they do no more

than say that they were.

(1) [1951] S.C.R. 167.

470

"such as to excite disaffection between Hindus and Muslims

and thereby prejudice the maintenance of public order in

Delhi."

I have no quarrel with the details regarding the date and

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place but I do not consider that the portion relating to the

nature of the speeches fulfils the requirements which have

been laid down by this Court regarding particulars.

Now I fully agree that each case will have to be decided on

its own facts so far as this is concerned. But when weighing

the circumstances this must be borne in mind. The detenu

has no right of personal appearance before the Advisory

Board or other revising authority, nor can he be represented

by counsel. The Board or other authority can deal with his

representation without hearing him or anyone on his behalf.

Therefore, his only hope of being able to convince the Board

lies in the explanation he offers. But how can anyone give

a fair explanation of his conduct unless he is told with

reasonable plainness what he has done, and in the case of a

speech, the words used are everything. They have been called

"verbal acts" in another connection. Now I take it to be

established that Government is bound to give a detenu rea-

sonable particulars of the acts complained of when conduct

is in question. Why should a different rule obtain when the

acts complained of are verbal ?

It was contended in the argument that the man who makes the

speech is in a position to know what he said and so is not

at a disadvantage. But that, in my opinion, is not the

point. He may know what he said but he cannot know what the

authorities think he said unless they give him some reasona-

ble inkling of what is in their minds. It has to be remem-

bered that what the Advisory Board has before it is not

necessarily the words employed or even' their substance but

what the authorities say the man said.

This has to be viewed from two angles. The first is whether

the reports handed in to the authorities are Correct. Even

with the utmost good faith mistakes do

471

occur and it is quite easy for a reporter to get his notes

mixed and to attribute to A what was said by B. But unless A

knows that is what happened, it would be very difficult for

him to envisage such a contingency and give the necessary

explanation of fact in his representation.

The next point is this. When a man ,is told that his

speech excited disaffection and so forth, he is being given

the final conclusion reached by some other mind or minds

from a set of facts which are not disclosed to him. If the

premises on which the conclusion is based are faulty, the

conclusion will be wrong. But even if the premises are

correct, the process of reasoning may be at fault. In

either event, no representation of value can be made without

a reasonably adequate knowledge of the premises.

Envisage for a moment the position of the Board. In the

ordinary course, it would have before it a speech with the

offending passages in full, or at any rate the gist of them.

From the other side it would have a bare denial, for that is

about all a detenu can say in answer to the grounds given to

him when he is not told the premises on which the conclusion

is based. In most cases, that sort of representation would

have very little value. Consider this illustration. Let us

assume the detenu had spoken about Hindus and Muslims but

had urged unity and amity and had said nothing objectionable

but that unknown to him the police, through a perfectly bona

fide mistake, had imputed to him certain offensive words

used by another speaker. What would be the value of a

detenu saying "I said nothing objectionable" and that is

almost all he can say in such a case. He cannot envisage

the mistake and say, "Oh yes, that was said, but not by me.

It was said by A or B." Consider a second illustration where

the detenu had quoted a well known living authority. I can

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conceive of cases where words in the mouth of A might be

considered objectionable by some but would never be condem-

ned in the mouth of B. It might make a world of difference

to

472

the detenu if he could explain the source of the passages

complained of in his speech. But it might be very difficult

for him to envisage the possibility of objection being taken

to anything coming from the source from which he quoted.

I am anxious not to be technical and I would be averse

to an interpretation which would unnecessarily embarrass

Government, but I do conceive it to be our duty to give a

construction which, while falling strictly within the ambit

of the language used, is yet liberal and reasonable, just to

the detenu, fair to the Government. And after all, what does

a construction such as I seek to make import ? It places no

great or impossible strain on the machinery of Government.

All that is required is that the authorities should bestow

on the cases of these detenus a very small fraction of the

thought, time and energy which the law compels in the case

of even the meanest criminal who is arraigned before the

Courts of this country. The fact that there is absent in

the case of these persons all the usual safeguards, the

glare of publicity, the right to know with precision the

charge against him, the right to speak in his own defence,

is all the more reason why Government should be thoughtful,

considerate and kind and should give them the maximum help.

In any case, that, in my opinion, is what the Constitution

requires and I am not prepared to abate one jot or tittle of

its rigours.

My attention has been drawn to two decisions of this

Court which are said to be on all fours with the present

case. One is Vaidya's case (1) and the other Lahiri's (2).

In the latter, the point whether the gist of the speech

should be given was not considered. It seemed to have been

assumed that it need not. But I am unable to accept that as

authority for anything beyond the fact that was not consid-

ered necessary on the facts and in the circumstances of that

particular case. As my Lord the Chief Justice pointed out

in the earlier decision cited above, the question of

(1) [1951] S.C.R. 167. (2) Not reported,

473

what is vague "must vary according to the circumstances of

each case." It was also said there that

"the conferment of the right to make a representation

necessarily carries with it the obligation on the part of

the detaining authority to furnish the grounds, i.e., mate-

rials on which the detention order was made."

It was further said

"Ordinarily, the 'grounds' in the sense of conclusions

drawn by the authorities will indicate the kind of prejudi-

cial act the detenu is suspected of being engaged in and

that will be sufficient to enable him to make a representa-

tion setting out his innocent activities to dispel the

suspicion against him."

This envisages cases in which that would not be enough.

It is therefore sufficient for me to say that in a case of

this kind, where the matter has to turn on the facts and

circumstances of each case, no useful purpose can be served

by examining the facts of some other case for use as an

analogy. In my opinion, on the facts and circumstances of

the present cases, the grounds supplied were insufficient

and the gist of the offending passages should have been

supplied. The omission to do so invalidates the detention

and each of the detenus is entitled to immediate release.

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Petitions dismissed.

Agent for the petitioners in Petitions Nos. 21 & 22:

Ganpat Rai.

Agent for the petitioner in Petition No. 44: V.P.K.

Nambiyar.

Agent for the respondents: P.A. Mehta.

474