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PETITIONER:

SHAMARAO V. PARULEKAR

Vs.

RESPONDENT:

THE DISTRICT MAGISTRATE, THANA, BOMBAY AND TWO OTHERSPetitio

DATE OF JUDGMENT:

26/05/1952

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

SASTRI, M. PATANJALI (CJ)

MAHAJAN, MEHR CHAND

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

CITATION:

1952 AIR 324 1952 SCR 683

CITATOR INFO :

R 1953 SC 52 (8)

R 1956 SC 614 (7)

RF 1986 SC2146 (9)

R 1991 SC 704 (B,7)

ACT:

Preventive Detention Act (IV of 1050)--Amendment Acts

of 1951 and 1952--Detention order under Act of 1950 as

amended in 1951 --Extension of duration of Act by Amending

Act of 1952 until 1st October, 1952--Whether extends period

of detention--Amendment Acts--Rule of construction__"Prin-

cipal Act," meaning of-Validity ors. 3 of Amending Act of

1952--Legality of detention after 1st April, 1952--Constitu-

tion Of India Arts. 14, 22(4) and (7).

89

684

HEADNOTE:

An order directing the detention of the petitioner was

made on the 15th of November, 1951, under the Preventive

Detention Act of 1950 as amended by the Amending Act of

1951, which prolonged the duration of the Act of 1950 up to

the 1st April, 1952. The Preventive Detention (Amendment)

Act of 1952 extended the duration of the Act of 1950 for a

further period of six months, that is to say, until the 1st

October, 1952. Section 3 of the Act of 1952 provided further

that detention orders confirmed under the principal Act and

in force immediately before the commencement of the Act of

1952, shall, where the period of detention is not specified

in the order, remain in force "for so long as the principal

Act (which was defined as the Act of 1950) was in force." It

was contended on behalf of the petitioner that his detention

after 1st April, 1952, was illegal.

Held, (i)When a subsequent Act amends an earlier one

in such a way as to incorporate itself or a part of itself

into the earlier, then the earlier Act must thereafter be

read and construed (except where that would lead to a repug-

nancy, inconsistency or absurdity) as if the altered words

had been written into the earlier Act with pen and ink and

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the old words scored out so that there is no need to refer

to the amending Act at all. After the passing of the Act of

1952 the expressions "the Act of 1950" and "the principal

Act" meant the Act of 1950 as amended by the Act of 1952,

and the effect of s. 3 of the Act of 1952 was that the

detention of the petitioner would remain in force until the

1st October, 1952, without prejudice to the power of the

Government to modify or revoke it;

(ii) section 3 did not contravene Art. 14of the Constitu-

tion as there was a rational classification of the cases of

detention orders in the section, and the period of detention

was left in every case to the discretion of the State;

(iii) the words "any person" in sub-cl. (b) of c1.7 of

Art. 22 of the Constitution do not contemplate that individ-

ual attention should be paid to each case; on the contrary,

the words used in the said sub-clause empower the Parliament

to prescribe the maximum for a class taken as a whole as it

has done in s. 3, and s. 3 does not therefore offend cl. (4)

or cl. (7) of Art. 22;

(iv) the power of the Parliament to fix a maximum

period does not exhaust itself once it has exercised that

power but can be exercised again in respect of the same

detention;

(v) section 3 is not repugnant tO the Constitution on

the ground that it does not fix a time limit, for it speci-

fies the period as until the expiry of the Act; nor on the

ground that it introduces the idea of potentially indefinite

detention by periodical amendments; for the Parliament has

the power to do that:

685

JUDGMENT:

ORIGINAL JURISDICTION: Petitions (Nos. 86, 147, and 155

of 1952) under article 32 of the Constitution for writs in

the nature of habeas corpus.

Petitioners in person in ,petitions Nos. 86, 147 and 157

of 1952.

Rajani Patel for the petitioner in petition No. 155.

M.C. Setalvad, Attorney-General for India, (G. N.

Joshi, with him) for the respondents.

R. Ganapathi Iyer for the intervener (State of Hydera-

bad).

1952. May 26. The Judgment of the Court was delivered

by

BOSE J.--This petition and three others, namely peti-

tions Nos. 147, 155 and 157 of 1952, raise issues regarding

the vires and applicability to these cases of section 3 of

the Preventive Detention (Amendment) Act, 1952. This judg-

ment is confined to those points and will govern these cases

only in so far as they raise those points. The remaining

points which do not touch these issues will be dealt with by

another Bench. The only exception is a point raised in

petition No. 155 of 1952 with which the other petitions are

not concerned. We will deal with that separately.

The present petition (No. 86 of 1952) was argued very

ably and with commendable conciseness by the petitioner in

person. The fact that he has not been able to persuade us

to his view is not due to any defect in his presentation of

the case.

The petitioner was arrested on the 15th of November,

1951, and an order of detention under the Preventive Deten-

tion Act of 1950 was served on him the same day, and he was

given the grounds of detention on the following day, the

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16th. His case was placed before an Advisory Board and on

the 8th of February, 1952, the Bombay Government "confirmed

and continued" the detention under section 11 (1) of the

Preventive Detention Act of 1950.

This Act, as it originally stood, was due to expire on

the 1st of April, 1951, but in that year an amending

686

Act was passed which, among other things, prolonged its life

to the 1st of April, 1952. The order of detention in this

case was passed under the Act of 1950 as amended by the

,Act of 1951. According to past decisions of this Court,

the detention would have expired on the 1st of April, 1952,

when the Act of 1950 as amended in 1951 would itself have

expired. But a fresh Act was passed in 1952 (Act XXXIV of

1952), the Preventive Detention (Amendment) Act, 1952. The

effect of this Act was to prolong the life of the Act of

1950 for a further six months, namely till the 1st of Octo-

ber, 1952. The question is whether that Act also prolonged

the detention and whether it had the vires to do so.

It was contended that the mere prolongation of the life

of an Act does not, by reason of that alone, prolong the

life of a detention which was due to expire when the Act

under which it was made expired. Therefore, as the Act

under which the present detention was made was due to expire

on the 1st of ApriL, 1952, the mere prolongation of its life

by the amending Act did not affect a prolongation of the

detention. Accordingly, the petitioner should have been

released on the 1st of April, 1952, and as there is no fresh

order of detention he is entitled to immediate release.

We need not express any opinion on that point because

there is present in the amending Act something more than a

mere prolongation of the life of the old one. There is

section a which is in these terms:

"Validity and duration of detention in certain cases-

Every detention order confirmed under section 11 of the

principal Act and in force immediately before the commence-

ment of this Act shall have effect as if it had been con-

firmed under the provisions of the principal Act as amended

by this Act; and accordingly, where the period of detention

is either not specified in such detention order or specified

(by whatever form of words) to be for the duration or until

the expiry of the principal Act or until the 31st day of

March, 1952, such detention order shall continue to

687

remain in force for so long as the principal Act is in

force, but without prejudice to the power of the appropriate

Government to revoke or modify it at any time."

It will be noticed that the concluding part of this

section states that the detention order shall remain in

force "for so long as the principal Act is in force." Sec-

tion 2 of the amending Act defines the "principal Act" to

mean the Act of 1950. Therefore, it was argued, as the Act

of 1950 was due to expire on the 1st of April, 1952, the

present detention also came to an end on that date and so,

in the absence of a fresh order of detention, the petition-

er's detention after that date was illegal. This argument,

though ingenious, is fallacious.

The construction of an Act which has been amended is

now governed by technical rules and we mast first be clear

regarding the proper canons of construction. The rule is

that when a subsequent Act amends an earlier one in such a

way as to incorporate itself, or a part of itself, into the

earlier, then the earlier Act must thereafter be read and

construed (except where that would lead to a repugnancy,

inconsistency or absurdity) as if the altered words had been

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written into the earlier Act with pen and ink and the old

words scored out so that thereafter there is no need to

refer to the amending Act at all. This is the rule in

England:see Craies on Statute Law, 5th edition, page 207; it

is the law in Amenca: see Crawford on Statutory Construc-

tion, page 110; and it is the law which the Privy Council

applied to India in Keshoram Poddar v. Nundo Lal Mallick(1).

Bearing this in mind it will be seen that the Act of 1950

remains the Act of 1950 all the way through even with its

subsequent amendments. Therefore, the moment the Act of

1952 was passed and section 2 came into operation, the Act

of 1950 meant the Act of 1950 as amended by section 2, that

is to say, the Act of 1950 now due to expire on the 1st of

October, 1952.

(1)(1927) 54 I.A. 152 at 155.

688

Turning now to section 3, whose vires is questioned,

and examining it clause by clause we first get these words:

"Every detention order confirmed under section 11 of

the principal Act and in force immediately before the

commencement of this Act."

According to the rule of construction just examined,

the words "principal Act" mean the Act of 1950 as amended by

the Acts of 1951 and of 1952, 'that is to say, the Act of

1950 due to expire on the 1st of October, 1952. Incidental-

ly, in the particular context it could not mean the Act of

1950 as it stood in 1950 because no order confirmed under it

as it then stood could have been alive "at the commencement

of this

Act", namely on the 15th of March, 1952. The section contin-

ues--

"shall have effect as if it had been confirmed under

the provisions of the principal Act as amended' by this

Act."

The underlined words "as amended by this Act" were

relied on to show that wherever the words "the principal

Act" were referred to they meant the unamended original Act

of 1950, otherwise these words would have been unnecessary.

In our opinion, they were unnecessary in the sense that

their absence would not have made any difference to the

interpretation though it would have made the section harder

to follow and understand. We say that for this reason.

Without the underlined words the section paraphrased would

read--

"Every detention order confirmed under the original Act

shall have effect as if confirmed under its provisions."

If this were to be read literally it would lead to an

absurdity, for if the order is actually confirmed under the

original unamended Act it would be pointless to introduce a

fiction and say that the order shall be deemed to be con-

firmed under that Act as unamended. But even apart from a

strictly technical construction, the language of the section

is accurate because, as we

689

have said, the rule is that an amended Act must be read as

if the words of amendment had been written into the Act

except where that would lead to an inconsistency, and this

would be one of those cases unless the words are construed

in a sensible and commonsense way. The draughtsman there-

fore had either to leave the words as they were, with an

apparent inconsistency, or make his meaning clear by adding

the words he did. But we do not think the addition made any

difference to the result.

We now turn to the second half of section 3, that is to

say, to the words following the semi-co]on. It is important

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to note here that this part is consequential on the first

and merely explains the effect of the first half. It is

also relevant to note that it deals with four different

kinds of orders, different, that is to say, in the form of

the words used though in the end they all come to the same

thing. It deals with the following kinds of order:-

(1) an order in which the period of detention is not

specified at all; in that event the detention would end at

midnight on the night of the gist of March, 1952. It is

clear that in this context the words "the principal Act"

cannot mean the Act expiring on the 1st of October, 1952,

because it envisages an order made before the Act of 1952

was in being and so on the date of its making the order

could only refer to the Act then in being;

(2) an order in which the period is stated to be "for

the duration of the principal Act", that is to say, till the

31st of March, 1952 ,-

(3) an order in which the period is specified to be

until the expiry of the principal Act, which again brings us

back to the 31st of March, 1952, as the last day of deten-

tion;

(4) an order in which the period is specified to be till

the 31st of March, 1952. In all these four cases the section

says that the detention order shall "continue to remain in

force, for so long as the principal Act is in force", that

, is to say, till the 1st October, 1952.

690

That follows from the first part of the section because that

is the meaning which the law directs shall be placed on

these words unless the context otherwise directs and the

context does not direct otherwise here. This part of the

section is only explanatory.

But we wish to found deeper than this. It is the duty

of Courts to give effect to the meaning of an Act when the

meaning can be fairly gathered from the words used, that is

to say, if one construction will lead to an absurdity while

another will give effect to what common sense would show was

obviously intended the construction which would defeat the

ends of the Act must be rejected even if the same words used

in the same section, and even the same sentence, have to be

construed differently. Indeed, the law goes so far as to

require the Courts sometimes even to modify the grammatical

and ordinary sense of the words if by doing so absurdity and

inconsistency can be avoided. See the speech of Lord Wens-

leydale in Grey v. Pearson (1) quoted with approval by the

Privy Council in Narayana Swami v. Emperor (2); also Salmon

v. Duncombe(3). The rule is also set out in the text books:

See Maxwell on the Interpretation of Statutes, 9th edition,

page 236, and Craies on Statute Law, 5th edition, pages 89

to 93. The meaning of section 3 is quite plain and only

desperate hair splitting can reduce it to an absurdity.

Courts should not be astute to defeat the provisions of an

Act whose meaning is, on the face of it, reasonably plain.

Of course, this does not mean that an Act, or any part of

it, can be recast. It must be possible to spell the meaning

contended for out of the words actually used. We hold that

there is no difficulty of construction.

It was next argued that in any event the extended deten-

tion became a fresh detention (because of the Act of 1952)

from the date the Act came into force, and reliance was

placed upon the judgments of two of us, Mahajan and Das JJ.

in S. Krishnan v. The State of Madras(4). It is enough to

say that was not the

(1) (1857) 6 H.L.C. 6 r at 106. (3) 11 App. Cas. 627 at

634.

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(2) A.I.R. 1939 P.C. 47. (4) [1951] S.C.R. 621 at

635 and 640.

691

decision of the Court in that case, and further, that the

two Judges who held it was a fresh detention nevertheless

considered that a fresh order with its concomitant fresh

grounds and a fresh reference to the Advisory Board were not

required; therefore, either way the petitioner must fail.

Reference was made to the equality clause in article 14

of the Constitution but that argument is easily met because

the classification which section 3 makes is reasonable. In

one class it places all those whose cases have already been

considered by the Advisory Board and in the other those

whose cases have yet to go before it; also the law is fair,

or at any rate as fair as detention laws can be, despite

this distinction because power is left to the appropriate

Government to revoke or modify these orders, or any of them,

at any time. Substantially therefore there is no differenti-

ation.

Article 14 was considered at length in The Slate of West

Bengal v. Anwar Ali Sarkar (1), and according to the law

laid down there, the Court must be satisfied on two points

before it can strike at a law on the ground of unlawful

discrimination. It must be satis fied (1) that the law in

fact discriminates and (2) that such discrimination is not

permissible on the principle of a rational classification

made for the purposes of the legislation.

The argument here was that section a discriminated against

those detenus whose cases had been referred to the Advisory

Board and whose detention was confirmed, on the strength of

its report, under section 11 (1) before the amending Act of

1952 was passed. The reason given was that these detentions

are automatically extended up to the 1st of October, 1952,

by section 3 without further reference to an Advisory Board,

whereas in other cases, that is to say, in the case of

those who were detained before the amending Act but whose

cases had not been referred at the date it came into force,

and in the case of those detained after the

(1)[1952] S.c.R.284

692

amending Act, the Advisory Board is called into play and

individual attention is given to each case with the result

that many of those detentions might not be for as long as

six months. They might, for example, be only for one month

or two. It was urged that this was discrimination of a kind

which cannot be supported by any principle of permissible

classification because classification into the above catego-

ries has no reasonable relation to the objects of the legis-

lation, such as security of the State, maintenance of public

order and so forth.

We are unable to accept this line of reasoning. To say

that section. 3 automatically extends the detention of

persons in the petitioner's position to the 1st of October,

1952, and stops there, is only to make a partial statement

of the effect of section 3 because the extension is subject

to the power of the appropriate Government to revoke or

modify it at any time. In other words, the automatic con-

tinuation of the detention till the 1st of October is not

absolute and irrevocable but is made dependent on the power

of the appropriate Government to revoke or modify it at its

discretion under section 13 of the Act. The State may or

may not continue the detention for the whole of the extended

period. In both classes of cases the duration the deten-

tion within the overall limit of the life of the Act is left

to the discretion of the State. The only difference is that

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in the one class of cases the discretion is exercised after

the period has been extended by the amending Act, in the

other the appropriate Government fixes the period itself in

its discretion and can again at its discretion revoke or

modify it. In both cases, the substance of the law is that

the period of detention is left to the discretion of the

State, and so there is no substantial discrimination.

It was argued that however fair this may look on paper,

in practice there will be grave discrimination because, as a

matter of fact, the State will not apply its mind in the

majority of cases like the petitioner's. That is an argument

we cannot accept and no material Was placed before us t0

justify such a conclusion,

693

We turn now to the next point. It was contended that sec-

tion 3 offends the Constitution because article 22 (4) and

(7) do not envisage the direct intervention of Parliament in

a whole batch of cases. The protection guaranteed is that

there shall be individual attention and consideration to

each separate case by some duly specified and constituted

authority. In our opinion, this is not accurate.

Article 22 (4) guarantees that there shall be no preven-

tive detention for more than three months unless the law

authorising it makes provision for an Advisory Board and the

Board after considering each individual case separately

reports that there is in its opinion sufficient cause for

such detention. To that extent there must be individual

consideration of each case, but once the report is made and

is unfavourable to the detenu, then the detention can be for

a longer period provided it does not exceed "the maximum

period prescribed by any law made by Parliament under sub-

clause (b) of clause (7)." Sub-clause (b) of clause (7)

empowers Parliament to prescribe "the maximum period for

which any person may in any class or ........... of cases

be detained under any law providing for preventive deten-

tion." Parliament is accordingly empowered to specify a

class. It has done so. The class is all persons whose cases

have already been considered by an Advisory Board. It is

empowered to prescribe a maximum period. That also it has

done. The extended detention (that is to say, for more than

three months) can then be "under any law providing for

preventive detention." A law made by Parliament falls within

these words. Parliament is equally authorised to say who

shall determine the period of detention, and as there is

nothing in the Constitution to prevent it can itself exer-

cise the authority it is empowered to delegate to others.

Stress was laid on the words "any person" in subclause

(b) of clause (7) and it was contended that this contem-

plates individual attention in each case. But

694

if that is so, then it means that Parliament must itself

direct the maximum period for each separate person falling

within the class individually. The words are, we think,

reasonably plain and we hold that Parliament can prescribe

the maximum for a class taken as a whole as it has done in

section 3.

It was next argued that once the power given under

clause (7) to fix a maximum period has been exercised the

power exhausts itself and cannot be exercised again in

respect of the same detention. In our opinion, no such

limitation is imposed upon Parliament by the Constitution.

Then it was said that section 3 stands on a footing

different from section 12 of the amending Act of 1951 as it

introduces the idea of potentially indefinite detention and

accordingly is repugnant to the Constitution, and in any

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event is a fraud upon it. In so far as this means that

section a fixes no time limit, the contention is unsound

because the section specifies the exact period of the deten-

tion, namely till the expiry of the Act of 1950, that is to

say, till the 1st of October, 1952. In so far as it means

that Parliament is enabled to continue detentions indefi-

nitely by the expedient of periodic amendments in the Act of

1950, the answer is that Parliament has the power. This was

precisely the power exercised in the amending Act of 1951

and upheld by this Court in S. Krishnan v. The State of

Madras(1). The present Act is no different from that in this

respect.

So far, we have dealt with the facts in petition No. 86

of 1952. The facts in the other three petitions naturally

differ in their details but they all conform to the same

general pattern so far as the points discussed above are

concerned, so there is no need to discuss them individually.

We hold that section 3 of the amending Act of 1952 is intra

vires and that the detentions are not bad on any of the

grounds discussed above. The rest of the points raised in

each individual case are left open except for one point

which

(1) [1951] S.C.R. 621.

695

arises in petition No. 155 of 1952. That point is as fol-

lows.

The first ground of detention given to the petitioner

in this case reads:

"Being the President of Jamat of Agris you have used

your position as such to increase your influence over the

residents of Uran Peta, have created a band of obedient and

trusted associates, have inflicted heavy fines on villagers

in Uran Peta who have disregarded your wishes and have

imposed on them boycott or excommunication in cases of their

refusal to pay the fines. "

It was argued that at the very outset'these allegations

import nothing more than an exercise of functions such as

the infliction of fines and excommunication which the peti-

tioner as head of the caste had authority to do. They do not

touch any of the matters covered by section 3 (1) (a) of the

Preventive Detention Act, 1950, under which the petitioner

is detained. For example, they do not touch the security of

the State or the maintenance of public order or any of the

other matters specified in section 3. They are therefore

irrelevant to the detention, and as it is impossible to say

how far these irrelevant matters influenced the detention,

the petitioner is entitled to release. Reliance was placed

upon certain observations of the Federal Court in Rex v.

Basudev(1). We think it unnecessary to examine this point

because we do not think the ground is irrelevant nor do we

agree that it means what the petitioner says.

In our opinion, the grounds of detention must be regarded

as a whole and when that is done the relevance of the first

ground becomes plain. The gravamen of the charge against

the petitioner is that he aimed at setting up a parallel

government in the Uran Peta area and that in order to

achieve that end he did various acts such as intimidating

the workers in the salt pans with threats of murder, and his

own workers with threats of death, unless they carried out

his

(1) [1949] F.C.R. 657 at 651.

696

orders; and among the lesser instances given to illustrate

the exercise of parallel governmental authority are the ones

set out in the first ground, namely the infliction of fines

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with the sanction of excommunication and boycott to ensure

their payment and due obedience to his orders. This point

has no force and is decided against the petitioner. It will

not be open to him to re-agitate this afresh when his case

is reheard on the remaining issues.

All the four cases will now be set down for hearing on

the remaining points which arise in them. As they do not

involve constitutional issues they need not go before a

Constitution Bench.

Agent for the petitioner in Petition No. 155: M.S.K.

Sastri for P.G. Gokhale.

Agent for the respondents and Intervener:P. A. Mehta.