This is an appeal from a judgment of the High Court at Bombay, ordering the release of the respondent who was detained in custody under a detention order made under ...
No Acts & Articles mentioned in this case
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PETITIONER:
THE STATE OF BOMBAY
Vs.
RESPONDENT:
ATMA RAM SRIDHAR VAIDYA
DATE OF JUDGMENT:
25/01/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1951 AIR 157 1951 SCR 167
CITATOR INFO :
R 1951 SC 174 (10)
E 1951 SC 270 (7)
R 1952 SC 350 (11)
R 1953 SC 318 (3)
R 1954 SC 179 (8)
RF 1956 SC 531 (4,5)
E&D 1957 SC 23 (9)
E&F 1957 SC 164 (3)
F 1958 SC 163 (14)
R 1959 SC1335 (10,13)
RF 1962 SC 911 (7)
RF 1964 SC 334 (6)
R 1966 SC1910 (4,8)
RF 1967 SC 295 (60)
R 1970 SC 852 (5,14)
R 1972 SC2086 (11)
RF 1973 SC2469 (5)
R 1974 SC 183 (15,58A,59)
D 1974 SC 255 (8)
RF 1976 SC1207 (116)
R 1979 SC1925 (8,17)
RF 1981 SC 28 (14)
D 1982 SC1029 (9)
RF 1982 SC1315 (23,30,32)
R 1984 SC 444 (14)
ACT:
Constitution of India, Arts. 21, 22 (5)--Preventive
detention-Duty to communicate grounds and to afford opportu-
nity to make representation--Whether distinct
rights--Ground supplied vagueNon-supply of particulars or
supply of particulars at later stage-Whether vitiates deten-
tion--Jurisdiction of court to consider sufficiency of
grounds--Preventive Detention Act (IV of 1950), s. 3.
HEADNOTE:
The respondent was arrested on the 21st of April, 1950,
under the Preventive Detention Act, 1950, and on the 29th of
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168
April. 1950, he was supplied with the ground for his deten-
tion which was as follows: "That you are engaged and are
likely to be engaged in promoting acts of sabotage on rail-
way and railway property in Greater Bombay." The respondent
filed a habeas corpus petition contending that the ground
supplied was vague as it did not mention the time, place or
nature of the sabotage or how the respondent promoted it and
that as the ground gave no particulars, his detention was
illegal. Pending the disposal of the petition, the Commis-
sioner of Police sent a communication to the respondent
giving these further particulars, viz., that the activities
mentioned in the grounds supplied to him were being carried
on by him in Greater Bombay between January, 1950, and the
date of his detention and that he will in all probability
continue to do so. The High Court of Bombay held that if
these particulars had been furnished at the time when the
grounds were furnished on the 29th of April, 1950, very
likely they would have come to the conclusion that the
grounds were such as would have led the detenue to know
exactly what he was charged with and to make a proper repre-
sentation, but released the respondent holding that the only
grounds which were furnished in the purported compliance of
Art. 22 (5) were the grounds furnished on the 29th of April,
1950, and as these grounds were not such as to enable the
detenue to make a proper representation, there was a viola-
tion of a fundamental right and a contravention of the
statutory provisions and this violation cannot be set right
by the detaining authority by amplifying or improving the
grounds already given:
Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI
SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ).-Under
s. 3 of the Preventive Detention Act, 1950, it is the satis-
faction of the Central Government or the State Government,
as the case may be, that is necessary, and if the grounds on
which it is stated that the Central Government or the State
Government are satisfied have a rational connection with the
objects which were to be prevented from being attained, the
question of satisfaction cannot be challenged in a court of
law except on the ground of mala fides.
Held also per KANIA C.J., FAZL ALI, MUKHERJEA and
CHANDRASEKHARA AIYAR JJ., (PATANJALI SASTRI and DAS JJ.
dissenting).--Clause (5)of Art. 22 confers two rights on
the detenue, namely, first, a right to be informed of the
grounds on which the order of detention has been made, and
secondly, to be afforded the earliest opportunity to make a
representation against the order; and though these rights
are linked together, they are two distinct rights. If
grounds which have a rational connection with the objects
mentioned in s. 3 are supplied, the first condition is
complied with. But the ,right to make a representation
implies that the detenue should have information so as to
enable him to make a representation, and if the grounds
169
supplied are not sufficient to enable the detenue to make a
representation, he can rely on the second right. He may if
he likes ask for further particulars which will enable him
to make a representation. On an infringement of either of
these two rights the detained person has a right to approach
the court, and even if an infringement of the second right
under Art. 22 (S) is alone, established he is entitled to be
released.
Per PATANJALI SASTRI and DAS JJ.--As the power to issue
a detention order depends upon the existence of a state of
mind in the detaining authority, that is, its satisfaction,
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which is purely a subjective condition and judicial enquiry
into the sufficiency of the grounds to justify the detention
is thus excluded, it would be wholly inconsistent with the
scheme to hold that it is open to the court to examine the
sufficiency of the same grounds to enable the person de-
tained to make a representation, for, the grounds to be
communicated to the person detained are the grounds on which
the order has been made. There is further nothing in Art.
22, el. (5), to warrant the view that the grounds on which
the order of detention has been made must be such, that when
communicated to the person they are found by a court of law
to be sufficient to enable him to make what the court con-
siders to be an adequate representation, or that the latter
part of cl. (5) confers a distinct right on the detenue or
an independent obligation on the detaining authority to
furnish the detenue with sufficient particulars and details
to enable him to make an effective representation.
Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI
SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.)-In any
view, on the facts of the case there was no infringement of
any fundamental right of the respondent or contravention of
any constitutional provision as he had been supplied with
sufficient particulars as soon as he raised the objection
that the grounds supplied were vague and the respondent was
not, therefore, entitled to be released.
Per KANIA C.J., FAZL ALI, MUKHERJEA and CHANDRASEKHARA
AIYAR JJ.)--The "grounds" for making the order which have to
be communicated to the person detained as soon as may be are
conclusions of facts and not a complete recital of all the
facts. These grounds must be in existence when the order is
made. No part of the 'grounds can be held back, and after
they have been once conveyed there can be no addition to the
grounds. All facts leading to the conclusion constituting
the ground need not, however, be conveyed at the same time.
If a second communication contains no further conclusion of
fact but only furnishes some of the facts on which the first
mentioned conclusion was rounded it does not amount to a
fresh ground. The test therefore is whether what is conveyed
in the second communication is a statement of facts or
events, which facts or
170
events were already taken into consideration in arriving at
the conclusion constituting the ground already supplied.
So long as the later communications do not make out a
new ground, their contents are no infringement of the two
procedural rights of the detenue mentioned in Art. 22, cl.
(5). They may consist of a narration of facts or particulars
relating to the grounds already supplied. But in doing so
the time factor in respect of second duty, viz., to give the
detained person the earliest opportunity to make a represen-
tation, cannot be overlooked.
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 it cannot be said to be
"vague." The question whether the vagueness or indefinite
nature of the statement furnished to the detained person is
such that he was not given the earliest opportunity to make
a representation is a matter within the jurisdiction of the
court's inquiry and subject to the court's decision.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:Case No. 22 of 1950.
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Appeal under Art. 132(1) of the Constitution against a
judgment and order of the Bombay High Court dated 1st Sep-
tember, 1950, in Criminal Application No. 807 of 1950. The
facts and arguments of counsel are set out in the judgment.
M.C. Setalvad Attorney-General, (G. N. Joshi, with him)
for the appellant.
A.S.R. Chari and Bava Shiv Charan Singh for the respond-
ent.
1951. Jan. 25. The judgment of Kania C.J., Fazl Ali,
Mukherjea and Chandrasekhara Aiyar JJ. was delivered by
Kania C.J. Patanjali Sastri and Das JJ. delivered separate
judgments.
KANIA C.J.--This is an appeal from a judgment of the
High Court at Bombay, ordering the release of the respondent
who was detained in custody under a detention order made
under the Preventive Detention Act (IV of 1950). The re-
spondent was first arrested on the 18th of December, 1948,
under the Bombay
171
Public Security Measures Act, 1948 (Bombay Act IV of 1947),
but was released on the 11th of November, 1949. He was
arrested again on the 21st of April, 1950, under the Preven-
tive Detention Act, 1950, and on the 29th of April, 1950`,
grounds for his detention 'were supplied to him. They were
in the following terms: "That you are engaged and are likely
to be engaged in promoting acts of sabotage on railway and
railway property in Greater Bombay." The respondent filed a
habeas corpus petition on the 31st of July, 1950, in which,
after reciting his previous arrest and release, in para-
graphs 6 and 7 he mentioned as follows :--
"(6) On his release the applicant left Bombay and stayed
out of Bombay, that is, in Ratlam and in Delhi.
(7) On 20th April, 1950, he returned to Bombay and was
immediately arrested as stated above."
He contended that the sole aim of the Government in
ordering his detention was not the preservation of public
order or the security of the State, but the locking up of
active trade unionists who belonged to the All-India Trade
Union Congress. He contended that the ground is "delight-
fully vague and does not mention when, where or what kind of
sabotage or how the applicant promoted it." He further urged
that the ground gave no particulars and therefore was not a
ground as required to be furnished under the Preventive
Detention Act, 1950. He stated that the present appellant
acted mala fide, for a collateral purpose, outside the scope
of the Act, and that the applicant's detention in any event
was illegal and mala fide. When this petition was presented
to the Court on the 9th of August, 1950, it directed the
issue of a notice to the Commissioner of Police. Pending
the disposal of the Rule, on the 26th August, 1950, the
Commissioner of Police sent a communication to the respond-
ent as follows:
"In pursuance of section 7 of the Preventive Detention
Act, 1950 (Act IV of 1950), and in continuation of my commu-
nication No. 227 dated the 29th April,
172
1950, the following further particulars are hereby communi-
cated to you in connection with the grounds on which a
detention order has been made against you under sub-section
(1) of section 3 of the said Act :-
That the activities mentioned in the grounds furnished
to you were being carried on by you in Greater Bombay be-
tween January 1950 and the date of your detention; and
In all probability you will continue to do so.
2. If, in view Of the particulars now supplied, you
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wish to make a further representation against the order
under which you are detained, you should address it to the
Government of Bombay and forward it through the Superintend-
ent of Arthur Road Prison, Bombay."
On the 30th of August, 1950, the Commissioner of Police
filed an affidavit against the petition of the respondent in
which it was stated that the objectionable activities were
carried on by the applicant between the months of January,
1950, and the date of detention. It further stated that in
or about the month of January, 1950, there was a move for a
total strike on the railways in India in the month of March,
1950, and the applicant was taking prominent part to see
that the strike was brought' about and was successful. As a
means to make the strike successful and bring about total
cessation of work on all railways, the applicant and his
associates were advocating sabotage on railways and railway
property in Greater Bombay. He further stated that reliable
materials were put before him of the respondent being en-
gaged in such activities by experienced police officers. He
added that although the railways strike in the month of
March did not materialise, the idea of bringing about such
strike as soon as convenient continued to be entertained and
the present respondent was actively engaged in bringing
about such a strike in the near future. He then stated that
the disclosure of further facts relating to the activities
of the detenue was against public interest. In para. 6
there was a specific denial that
173
the respondent, after his release in November, 1949, and
till 20th April, 1950, was out of Bombay. It was stated
that he used to go out of Bombay at times but during the
major part of the period he was in the city of Bombay.
When the matter came up before a Bench of the High Court
the respondent's petition was granted. In the judgment of
the Court, Chagla C.J. observed: "It is clear by reason of
the view we have taken in several cases under section 491 of
the Criminal Procedure Code, that this is not a ground which
would enable the detenue to make a representation to which
he is entitled both under the Act and under the Constitu-
tion." After noticing the affidavit of the Commisioner of
Police, it was further observed: "We appreciate the fact
that, after our decision was given, Government decided to
place all the materials before us so that we should be
satisfied that what influenced the detaining authority in
making the order was not any ulterior motive but that ample
materials were at the disposal of the detaining authority
which would justify the applicant's detention. We have
looked at this affidavit and we have also looked at the
particulars furnished to us by Mr. Chudasama. If these
particulars had been furnished at the time when the grounds
were furnished on the 29th of April, 1950, very likely we
would have come to the conclusion that the grounds were such
as would have led the detenue to; know exactly what he was
charged with and to make a proper representation." The
judgment is however based on the following observation of
the Chief Justice: "Anew and important question arises for
our consideration; and that is whether it is permissible to
the detaining authority to justify the detention by amplify-
ing and improving the grounds originally
furnished ......... The only grounds which we have to
consider and which were furnished in the purported compli-
ance of article 22(5) were the grounds furnished to the
detenue on the 29th of April, 1950; and if these grounds
were not such as to enable the detenue to make a proper
representation, then there was a
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174
violation of the fundamental right and a contravention of
the statutory provisions. That violation and that contra-
vention cannot be set right by the detaining authority by
amplifying or improving the grounds already given. As we
said before, the point of time at which we have to decide
whether there was a compliance or not with the provisions of
article 22 (5) is the 29th of April, 1950, when the grounds
were furnished, and not when further and better particulars
were given on the 26th of August 1950." The learned Attor-
ney-General, appearing for the appellant, has strenuously
objected to this line of approach.
As the question of vagueness of grounds for the order of
detention and the question whether supplementary grounds
could be furnished after the grounds were first given to the
detenue have arisen in various High Courts, we think it
right that the general principles should be properly
appreciated. The Constitution of India has given legisla-
tive powers to the States and the Central Government to pass
laws permitting preventive detention. In order that a legis-
lation permitting preventive detention may not be contended
to be an infringement of the Fundamental Rights provided in
Part III of the Constitution, article 22 lays down the
permissible limits of legislation empowering preventive
detention. Article 22 prescribes the minimum procedure that
must be included in any law permitting preventive detention
and as and when such requirements are not observed the
detention, even if valid an initio, ceases to be "in accord-
ance with procedure established by law" and infringes the
fundamental right of the detenue guaranteed under articles
21 and 22 (s) of the Constitution. In that way the subject
of preventive detention has been brought into the chapter on
Fundamental Rights. In the 3resent case we are concerned
only with clauses (5) and (6) of article 22 which run as
follows:-
22. "(5) When any person is detained in pursuance of an
order made under any law providing for preventive detention,
the authority making the order shall,
175
as soon as may be, communicate to such person the ground on
which the order has been made and shall afford him the
earliest opportunity of making a representation against the
order.
(6) Nothing in clause (5) shall require the authority
making any such order as is referred to in that clause to
disclose facts which such authority considers to be against
the public interest to disclose."
It has to be borne in mind that the legislation in
question is not an emergency legislation. The powers of
preventive detention under this Act of 1950 are in addition
to those contained in the Criminal Procedure Code, where
preventive detention is followed by an inquiry or trial. By
its very nature, preventive detention is aimed at preventing
the commission of an offence or preventing the detained
person from achieving a certain end. The authority making
the order therefore cannot always be in possession of full
detailed information when it passes the order and the infor-
mation in its possession may fall far short of legal proof
of any specific offence, although it may be indicative of a
strong probability of the impending commission of a prejudi-
cial act. Section a of the Preventive Detention Act there-
fore requires that the Central Government or the State
Government must be satisfied with respect to any person that
with a view to preventing him from acting in any manner
prejudicial to (1) the defence of India, the relations of
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India with foreign powers, or the security of India, or (2)
the security of the State or the maintenance of public
order, or (8) the maintenance of supplies and services
essential to the community ......... it is necessary So to
do, make an order directing that such person be detained.
According to the wording of section 3 therefore before the
Government can pass an order of preventive detention it must
be satisfied with respect to the individual person that his
activities are directed against one or other of the three
objects mentioned in the section, and that the detaining
authority was satisfied that it was necessary to prevent him
from
23
176
acting in such a manner. The wording of the section thus
clearly shows that it is the satisfaction of the Central
Government or the State Government on the point which alone
is necessary to be established. It is significant that while
the objects intended to be defeated are mentioned, the
different methods, acts or omissions by which that can be
done are not mentioned, as it is not humanly possible to
give such an exhaustive list. The satisfaction of the
Government however must be based on some grounds. There can
be no satisfaction if there are no grounds for the same.
There may be a divergence of opinion as to whether certain
grounds are sufficient to bring about the satisfaction
required by the section. One person may think one way,
another the other way. If, therefore, the grounds on which
it is stated that the Central Government or the State Gov-
ernment was satisfied are such as a rational human being can
consider connected in some manner with the objects which
were to be prevented from being attained, the question of
satisfaction except on the ground of mala fides cannot be
challenged in a court. Whether in a particular case the
grounds are sufficient or not, according to the opinion of
any person or body other than the Central Government or the
State Government, is ruled out by the wording of the sec-
tion. It is not for the court to sit in the place of the
Central Government or the State Government and try to deter-
mine if it would have came to the same conclusion as the
Central or the State Government. As has been generally
observed, this is a matter for the subjective decision of
the Government and that cannot be substituted by an objec-
tive test in a court of law. Such detention orders are
passed on information and materials which may not be strict-
ly admissible as evidence under the Evidence Act in a
court, but which the law, taking into consideration the
needs and exigencies of administration, has allowed to be
considered sufficient for the subjective decision of the
Government.
An order having been so permitted to be made, the next
step to be considered is, has the detained person
177
any say in the matter? In the chapter on Fundamental Rights,
the Constitution of India, having given every citizen a
right of freedom of movement, speech, etc. with their
relative limitations prescribed in the different articles in
Part III, has considered the position of a person detained
under an order made under a Preventive Detention Act. Three
things are expressly considered. in article 22 (5) it is
first considered that the man so detained has a right to be
given as soon as may be the grounds on which the order has
been made. He may otherwise remain in custody without having
the least idea as to why his liberty has been taken away.
This is considered an elementary right in a free democratic
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State. Having received the grounds for the order of deten-
tion, the next point which is considered is, "but that is
not enough; what is the good of the man merely knowing
grounds for his detention if he cannot take steps to redress
a wrong which he thinks has been committed either in belief
in the grounds or in making the order." The clause therefore
further provides that the detained person should have the
earliest opportunity making a representation against the
order. The representation has to be against the order of
detention because the grounds are only steps for the satis-
faction of the Government on which satisfaction the order
of detention has been made. The third thing provided is in
clause (6). It appears to have been thought that in convey-
ing the information to the detained person there may be
facts which cannot be disclosed in the public interest. The
authorities are therefore left with a discretion in that
connection under clause (6). The grounds which form the
basis of satisfaction when formulated are bound to contain
certain facts, but mostly they are themselves deductions of
facts from facts. That is the general structure of article
22, clauses (5) and (6), of the Constitution.
The question arising for discussion is what should be
stated in the grounds. It is argued that whatever may be
stated or omitted to be stated, the ground cannot be
vague;that the Constitution envisages the
178
furnishing of the grounds once and therefore there is no
occasion for furnishing particulars or supplemental grounds
at a later stage; and that article 22 (5) does not give the
detained person a right to ask for particulars, nor does it
give the authorities any right to supplement the grounds,
once they have furnished the same. In our opinion much of
the controversy is based on a somewhat loose appreciation of
the meaning of the words used in the discussion. We think
that the position will be clarified if it is appreciated in
the first instance what are the rights given by article 22
(5). 'The first part of article 22, clause (5), gives a
right to the detained person to be furnished with "the
grounds on which the order has been made" and that has to be
done "as soon as may be." The second right given to such
persons is of being afforded "the earliest opportunity of
making a representation against the order." It is obvious
that the grounds for making the order as mentioned above,
are the grounds on which the detaining authority was satis-
fied that it was necessary to make the order. These grounds
therefore must be in existence when the order is made. By
their very nature the grounds are conclusions of facts and
not a complete detailed recital of all the facts. The con-
clusions drawn from the available facts will show in which
of the three categories of prejudicial acts the suspected
activity of the particular person is considered to fall,
These conclusions are the "grounds" and they must be sup-
plied. No part of such "grounds" can be held back nor can
any more "grounds" be added thereto. What must be supplied
are the "grounds on which the order has been made" and
nothing less. The second right of being afforded the
"earliest opportunity of making a representation against the
order" is not confined to only a physical opportunity by
supplying paper and pen only. In order that a representa-
tion can be made the person detained must first have knowl-
edge of the grounds on which the authorities conveyed that
they were satisfied about the necessity of making the
detention order. It is therefore clear that if the repre-
sentation has to be intelligible to meet the charges
179
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contained in the grounds, the information conveyed to the
detained person must be sufficient to attain that object.
Ordinarily, the "grounds" in the sense of conclusions drawn
by the authorities will indicate the kind of prejudicial act
the detenue is suspected of being engaged in and that will
be sufficient to enable him to make a representation setting
out his innocent activities to dispel the suspicion against
him. Of course if the detenue is told about the details of
facts besides the grounds he will certainly be in a better
position to deal with the same. It is significant that the
clause does not say that the "grounds" as well as details of
facts on which' they are based must be furnished or fur-
nished at one time. The law does not prescribe within what
time after the grounds are furnished the representation
could be made. The time in each case appears deliberately
unprovided for expressly, because 'circumstances vary in
each case and make it impossible to fix a particular time
for the exercise of each of these two rights.
It thus appears clear that although both these rights
are separate and are to be exercised at different times,
they are still connected with each other. Without getting
information 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. The right to receive the
grounds is independent but it is thus intentionally bound up
and connected with the right to make the representation.
Although these two rights are thus linked up, the contingen-
cy of further communication between the furnishing of the
grounds on which the order is made and the exercise of the
right of representation granted by the second part of that
clause is not altogether excluded., One thing is clear from
the wording of this clause and that is that after the
grounds are once conveyed to the detenue there can be no
addition to the grounds. The grounds being the heads, from
which the Government was satisfied that it was necessary to
pass the order of detention, there can be no addition to
those
180
grounds because such additional grounds will be either the
grounds which were not elements to bring about the satisfac-
tion of the Government or if they were such grounds there
has been a breach of the provision of the first part of
article 22 (5), as those grounds for the order of detention
were not conveyed to the detained person "as soon as may
be."
This however does not mean that all facts leading to the
conclusion mentioned in the grounds must be conveyed to the
detained person at the same time the grounds are conveyed to
him. The facts on which the conclusion mentioned in the
grounds are based must be available to the Government, but
there may be cases where there is delay or difficulty in
collecting the exact data or it may not be convenient to set
out all the facts in the first communication. If the sec-
ond' communication contains no further conclusion of fact
from facts, but only furnishes all or some of the facts on
which the first mentioned conclusion was rounded it is
obvious that no fresh ground for which the order of
detention was made is being furnished to the detained person
by the second communication which follows some time after
the first communication. As regards the contents of that
communication therefore he test appears to be whether what
is conveyed in the second communication is a statement of
facts or vents, which facts or events were already taken
into consideration in arriving at the conclusion included in
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the ground already supplied. If the later communication
contains facts leading to a conclusion which is outside the
ground first supplied, the same cannot be looked into as
supporting the order of detention and therefore those
grounds are "new" grounds. In our opinion that is the more
appropriate expression to be used. The expression "addi-
tional grounds" seems likely to lead to confusion of
thought.
The next point to be considered is the time factor. if a
second communication becomes necessary, when should it be
made ? Clause 22 (5) lays down two time factors. The first
is that the grounds should be supplied "as soon as may be "
This allows the
181
authorities reasonable time to formulate the grounds on the
materials in their possession. The time element is neces-
sarily left indeterminate because activities of individuals
tending to bring about a certain result may be spread over a
long or a short period, or a larger or a smaller area, or
may be in connection with a few or numerous individuals.
The time required to formulate the proper grounds of deten-
tion, on information received, is bound to vary in individu-
al cases. There is no doubt that no express words are used
to suggest a second communication from the authority to the
detained person. But having regard to the structure of the
clause dealing with the two rights connected by the word
"and ", and the use of the words "as soon as may be" and
"earliest opportunity" separately, indicating two distinct
time factors, one in respect of the furnishing of grounds
and the other in respect of the making of the representa-
tion, the contingency of a second communication after the
grounds are furnished, is not excluded. However, the second
communication should not be liable to be charged as not
being within the measure "as soon as may be ". Secondly, it
must not create a new ground on which satisfaction of the
Government could be suggested to have been arrived at. In
our opinion, if these two conditions are fulfilled, the
objection against a later communication of details or facts
is not sufficient to cause an infringement of the provision
made in article 22(5). The question has to be approached
from another point of view also. As mentioned above, the
object of furnishing grounds for the order of detention is
to enable the detenue to make a representation, i.e., to
give him an opportunity to put forth his objections against
the order of detention. Moreover, "the earliest opportuni-
ty" has to be given to him to do that. While the grounds of
detention are thus the main factors on which the subjective
decision of the Government is based, other materials on
which the conclusions in the grounds are rounded could and
should equally be conveyed to the detained person to enable
him to make out his objections against the
182
order. To put ,it in other words, the detaining authority
has made its decision and passed its order. The detained
person is then given an opportunity to urge his objections
which in cases of preventive detention comes always at a
later stage. The grounds may have been considered suffi-
cient by the Government to pass its judgment. But to enable
the detained person to make his representation against the
order, further details may be furnished to him. In our
opinion, this appears to be the true measure of the proce-
dural rights of the detained person under article 22 (5).
It was argued that under article 22 (6) the authorities
are permitted to withhold facts which they consider not
desirable to be disclosed in the public interest. It was
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argued that therefore all other facts must be disclosed. In
our opinion that is not the necessary conclusion from the
wording of article 22 (6). It gives a right to the detaining
authority not to disclose such facts, but from that it does
not follow that what is not stated or considered to be
withheld on that ground must be disclosed and if not dis-
closed, there is a breach of a fundamental right. A wide
latitude is left to the authorities in the matter of disclo-
sure.
They are given a special privilege in respect of facts
which are considered not desirable to be disclosed in public
interest. As regards the rest, their duty is to disclose
facts so as to give the detained person the earliest oppor-
tunity to make a representation against the order of deten-
tion.
On behalf of the respondent, it was argued that if the
grounds of detention are vague or insufficiently clear there
will result a failure to give him the earliest opportunity
to make a representation against the order of detention and
that defect in its turn must affect the satisfaction on
which the order of detention was made. It was argued that
just as a ground which is completely irrelevant, and there-
fore, in law is no ground at all, could not satisfy any
rational person about the necessity for the order, a vague
ground
183
which is insufficient to enable the detenue to make a repre-
sentation would similarly make the order of detention
based on it, void. In our opinion, this argument is un-
sound. Although the ground may be good there may be a
certain indefiniteness in its statement. Proceeding on
the footing that there is some connection, i.e., the ground
by itself is not so convincingly irrelevant and incapable
of bringing about satisfaction in any rational person, the
question whether such ground can give rise to the satisfac-
tion required for making the order is outside the scope of
the inquiry of the court. On the other hand, the question
whether the vagueness or indefinite nature of the statements
furnished to the detained person is such as to give him the
earliest opportunity to make a representation to the author-
ity is a matter within the jurisdiction of the court's
inquiry and subject to the court's decision. The analogy
sought to be drawn between a ground which can have no
connection whatsoever with the order and a ground which on
its face has connection with the order but is not definite
in its statement, is clearly faulty. The extreme position,
on the other hand, that there is no connection between the
ground to be furnished and the representation to be made by
the detained person under article 22 (5) is equally unsound,
when the object in furnishing the ground is kept in mind.
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.,
materials on which the detention order was made. In our
opinion, it is therefore clear that while there is a connec-
tion between the obligation 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 dif-
ferent. As already pointed out, for the first, the test is
whether it is sufficient to satisfy the authority. For the
second, the test is,
24
184
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whether it is sufficient to enable the detained person to
make the representation at the earliest opportunity.
The argument advanced on behalf of the respondent mixes up
the two rights given under article 22 (5) and converts it
into one indivisible right. We are unable to read article 22
(5) in that way. As pointed out above, the two rights are
connected by the word "and". Furthermore, the use of the
words "as soon as may be" with the obligation to furnish the
grounds of the order of detention, and the fixing of another
time limit, viz. the earliest opportunity, for making the
representation, makes the two rights distinct. The second
right, as it is a right of objection, has to depend first on
the service of the grounds on which the conclusion, i.e.,
satisfaction of the Government about the necessity of making
the order, is based. To that extent, and that extent alone,
the two are connected. But when grounds which have a ration-
al connection with the ends mentioned in section a of the
Act are supplied, the first condition is satisfied. If the
grounds are not sufficient to enable the detenue to make a
representation, the detenue can rely on his second right and
if he likes may ask for particulars which will enable him to
make the representation. On an infringement of either of
these two rights the detained person has a right to approach
the court and complain that there has been an infringement
of his 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. To treat the two
rights mentioned in article 22 (s) as one is neither proper
according to the language used, nor according to the purpose
for which the rights are given.
The contention that the grounds are vague requires
some clarification. What is meant by vague ? Vague can be
considered as the antonym of 'definite'. If the ground
which is supplied is incapable of being understood or de-
fined with sufficient certainty it can be called vague. It
is not possible to state affirmatively more on the question
of what is vague. It must vary according to the circum-
stances of each case. It is
185
however improper to contend that a ground is necessarily
vague if the only answer of the detained person can be to
deny it. That is a matter of detail which has to be examined
in the light of the circumstances of each case. If on
reading the ground furnished it is capable of being intel-
ligently understood and is sufficiently definite to furnish
materials to enable the detained person to make a represen-
tation against the order of detention it cannot be called
vague. The only argument which could be urged is that the
language used in specifying the ground is so general that it
does not permit the detained person to legitimately meet the
charge against him because the only answer which he can make
is to say that he did not act as generally suggested. In
certain cases that argument may support the contention that
having regard to the general language used in the ground he
has not been given the earliest opportunity to make a repre-
sentation against the order of detention. 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 detained person.
The argument that supplementary grounds cannot be given
after the grounds are first given to the detenue, similarly
requires a closer examination. The adjective "supplemen-
tary" is capable of covering cases of adding new grounds to
the original grounds, as also giving particulars of the
facts which are already mentioned, or of giving facts in
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addition to the facts mentioned in the ground to lead to the
conclusion of fact contained in the ground originally fur-
nished. It is clear that if by "supplementary grounds" is
meant additional grounds, i.e., conclusions of fact required
to bring about the satisfaction of the Government, the
furnishing of any such additional grounds at a later stage
will amount to an infringement of the first mentioned right
in article 22 (5) as the grounds for the order of detention
must be before the Government before it is satisfied about
the necessity for making the order and all such grounds have
to be furnished
186
as soon as may be. The other aspects, viz., the second
communication (described as supplemental grounds) being only
particulars of the facts mentioned or indicated in the
grounds first supplied, or being additional incidents which
taken along with the facts mentioned or indicated in the
ground already conveyed lead to the same conclusion of fact,
(which is the ground furnished in the first instance) stand
on a different footing. These are not new grounds within
the meaning of the first part of article 22 (5). Thus,
while the first mentioned type of "additional" grounds
cannot be given after the grounds are furnished in the first
instance, the other types even if furnished after the
grounds are furnished as soon as may be, but provided they
are furnished so as not to come in conflict with giving the
earliest opportunity to the detained person to make a repre-
sentation, will not be considered an infringement of either
of the rights mentioned in article 22 (5) of the Constitu-
tion.
This detailed examination shows that preventive deten-
tion is not by itself considered an infringement of any of
the fundamental rights mentioned in Part III of the Consti-
tution. This is, of course, subject to the limitations
prescribed in clause (5) of article 22. That clause, as
noticed above, requires two things to be done for the person
against whom the order is made. By reason of the fact that
clause (5)forms part of Part III of the Constitution, its
provisions have the same force and sanctity as any other
provision relating to fundamental rights. As the clause
prescribes two requirements, the time factor in each case is
necessarily left fluid. While there is the duty on the part
of the detaining authority to furnish grounds and the duty
to give the detained person the earliest opportunity to make
a representation, which obligations, as shown above, are
correlated, there exists no express provision contemplating
a second communication from the detaining authority to the
person detained. This is because in several cases a second
communication may not be necessary at all. The only thing
which emerges from the discussion is that while the authori-
ties must
187
discharge the duty in furnishing grounds for the order
detention "as soon as may be" and also provide "the earliest
opportunity to the detained person to' make the representa-
tion", the number of communications from the detaining
authority to the detenue may be one or more and they may be
made at intervals, provided the two parts of the aforesaid
duty are discharged in accordance with the wording of clause
(5). So long as the later communications do not make out a
new ground, their contents are no infringement of the two
procedural rights of the detenue mentioned in the clause.
They may consist of a narration of facts or particulars
relating to the grounds already supplied. But in doing so
the time factor in respect of the second duty, viz. to give
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the detained person the earliest opportunity to make a
representation, cannot be overlooked. That appears to us to
be the result of clause (5) of article 22.
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 of words in the communication convey-
ing the grounds of detention. In our opinion, this attitude
is quite deplorable. We agree with the High Court of Bombay
in its observation when it says: "In all the matters which
have come up before us we have been distressed to find how
vague and unsatisfactory the grounds are which the detaining
authority furnished to the detenue; and we are compelled to
say that in almost every case we have felt that the grounds
could have been ampler and fuller without any detriment to
public interest." While the Constitution gives the Govern-
ment the privilege of not disclosing in public interest
facts which it considers undesirable to disclose, by the
words used in article 22 (5) there is a clear obligation to
convey to the detained person materials (and the disclosure
of which is not necessary to be withheld) which will enable
him to make a representation. It may be
188
noticed that the Preventive Detention Act may not even
contain machinery to have the representation looked into by
an independent authority or an advisory board. Under these
circumstances, it is but right to emphasize that the commu-
nication made to the detained person to enable him to make
the representation should, consistently with the privilege
not to disclose facts which are not desirable to be dis-
closed in public interest, be as full and adequate as the
circumstances permit and should be made as soon as it can be
done. Any deviation from this rule is a deviation from the
intention underlying article 22 (5) of the Constitution.
The result of this attitude of some detaining authorities
has been that, applying the tests mentioned' above, several
communications to the detained persons have been found
wanting and the orders of detention are pronounced to be
invalid.
Having regard to the principles mentioned above, we have
to consider whether the judgment of the High Court is cor-
rect. We have already pointed out that the summary rejec-
tion by the High Court of the later communication solely on
the ground that all materials in all circumstances must be
furnished to the detenue when the grounds are first communi-
cated, is not sound. We have indicated the circumstances and
conditions under which the later communication may or may
not be considered as falling within the purview of article
22 (5) of the Constitution.
In dealing with the position when the grounds were first
communicated, the High Court held as follows: "This is not a
ground which would enable the detenue to make a representa-
tion to which he is entitled both under the Act and under
the Constitution." In this case the later communication of
the 26th August, 1950, was made after the respondent filed
his petition and it appears to have been made to controvert
his allegation that he was never in Bombay between January
and April, 1950, as alleged in his affidavit. After taking
into consideration this communication it was observed by
Chagla C.J. that if these particulars had been furnished on
29th April, 1950, very likely the
189
court would have rejected the petition. The court set the
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respondent free only because of its view that after 29th
April no further communication was permissible.' In our
opinion, this view is erroneous. We think that on the facts
of the present case therefore the respondent's petition
should have been dismissed. We therefore allow the appeal.
PATANJALI SASTRI. J.--While I concur in the order pro-
posed by my Lord that this appeal should be allowed, I
regret I find myself unable to agree with him on the true
meaning and effect of article 22, clause (8), which is
reproduced in section 7 of the Preventive Detention Act,
1950, (hereinafter referred to as "the Act"). Put shortly,
the question that falls to be decided is: Is it within the
competence of the court to examine the grounds communicated
to a person detained under the Act, with a view to see if
they are sufficient in its opinion to enable him to make a
representation to the detaining authority against the order,
and if they are not, to direct his release ?
It is now settled by the decision of the majority in
Gopalan's case(1) that article 21 is applicable to preven-
tive detention except in so far as the provisions of article
22 (4) to (7) either expressly or by necessary implication
exclude its application, with the result that a person
cannot be deprived of his personal liberty, even for preven-
tive purposes, "except according to procedure established by
law." Part of such procedure is provided by the Constitution
itself in clauses (5) and (6) of article 22 which read as
follows:
"(5) When any person is detained in pursuance of an
order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order.
(6) Nothing in clause (5) shall require the authority
making any such order as is referred to in that clause
(1) [1950] S.C.R. 88.
190
to disclose facts which such authority considers to be
against the public interest to disclose.
If this procedure is not complied with, detention under
the Act may well be held to be unlawful, as it would then be
deprivation of personal liberty which is not in accordance
with the procedure established by law. The question accord-
ingly arises as to what are the requirements of article 22
(5) and whether they have been complied with in the present
case ?
On behalf of the respondent it is urged that the clause
provides two safeguards for the person ordered to be de-
tained, namely, that (1) the grounds of his detention should
be communicated to him as soon as may be, and (2) he should
be given the earliest opportunity of making a representation
against the order. As there is to be no trial in such cases,
the right of making a representation affords, it is said,
the only opportunity to the person detained to repell the
accusation brought against him and establish his innocence.
It is the communication of the grounds of detention that is
expected to give him notice of what he is to meet by making
a representation. The grounds must, therefore, it is sub-
mitted, give sufficient indication of the nature and extent
of the information on which action has been taken against
him and must contain sufficient particulars of the time and
place of the acts charged, so as to enable him to make his
representation effective as far as it is in his power to do
so. If the grounds are vague and do not disclose the sub-
stance of the information on which the detention has been
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based, there would be no real compliance with the procedure
prescribed by article 22 (s), and the detention must, it is
claimed, be unlawful. In other words, the sufficiency of the
grounds for the purpose of enabling the person detained to
make an effective representation against the order of deten-
tion is, in every case, a justiciable issue.
It must now be taken as settled by the decision of this
Court in Gopalan's case(1), which on this point was
(1) [1951] S.C.R. 88.
191
unanimous, that section 3 of the Act is constitutional and
valid notwithstanding that it leaves it to the, "satisfac-
tion" of the executive government to decide whether action
under the Act is to be taken or not against any particular
person or persons. The learned:Chief Justice pointed out
(at p. 121) that action by way of preventive detention must
be based largely on suspicion, and quoted the remark of Lord
Finlay in Rex v. Halliday(1), that a court is the least
appropriate tribunal to investigate the question whether
circumstances of suspicion exist warranting the re-
straint on a person. Dealing with a similarly worded
provision of the Central Provinces and Berar Public Safety
Act, 1948, the Federal Court declared in another unanimous
judgment, that "The language clearly shows that the respon-
sibility for making a detention order rests upon the provin-
cial executive as they alone are entrusted with the duty of
maintaining public peace;and it would be a serious deroga-
tion from that responsibility if the court were to substi-
tute its judgment for the satisfaction of the executive
authority and, to that end, undertake an investigation of
the sufficiency of the materials on which such satisfaction
was grounded ......... The court can, however, examine the
grounds disclosed by the Government to see if they are
relevant to the object which the legislation has in view,
namely, the prevention of acts prejudicial to public safety
and tranquillity, for "satisfaction" in this connection must
be grounded on material which is of rationally probative
value"-Machindar Shivaji Mahar v. The King (2). These
decisions clearly establish, what indeed is plain from the
nature of the measure, that preventive detention is a form
of precautionary police action, to be employed on the sole
responsibility of the executive government whose discretion
is final, no recourse being permitted to a court of law by
way of review or justification of such action except on
allegations of mala fides or irrational conduct.
(1) [1917] A.C. 260, 269. (2) [1949-50]
25
192
When the power to issue a detention order has thus been
made to depend upon the existence of a state of mind in the
detaining authority, that is, its "satisfaction", which is a
purely subjective condition, so as to exclude a judicial
enquiry into the sufficiency of the grounds to justify the
detention, it seems to me to be wholly inconsistent with
that scheme to hold that it is open to the court to examine
the sufficiency of the same grounds to enable the person
detained to make a representation, for, be it noted, the
grounds to be communicated to the person detained are the
"grounds on which the order has been made." Indeed, the
logical result of the argument advanced by the respondent's
counsel would be to invalidate section 3 of the Act in so
far as it purports to make the satisfaction of the govern-
ment the sole condition of a lawful detention, for, if
clause (5) of article 22 were to be construed as impliedly
authorising a judicial review of the grounds of detention to
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see if they contain sufficient particulars for making a
representation, then, the subjective condition prescribed in
section 3 would be inconsistent with that clause and there-
fore void. When this was pointed out to counsel he submit-
ted that the decision in Gopalan's case (1) as to the con-
stitutionality of section 3 required reconsideration in the
light of his arguments based on article 22, clause (5).
Although the clause was not then considered from this point
of view, it came in for a good deal of discussion in connec-
tion with section 14 of the Act and the present argument
must, in my opinion, be rejected because it runs counter to
that decision.
Apart from this aspect of the matter, I am not much
impressed with the merits of the argument. While granting,
in view of the structure and wording of clause (5), that the
grounds communicated to the person detained are to form the
basis of his representation against the order, I am unable
to agree with what appears to be the major premise of the
argument, namely, that clause (5) contemplates an inquiry
where the person detained is to be formally charged with
(1) [1950] S.C.R.188,
193
specific acts or omissions of a culpable nature and called
upon to answer them. As pointed out by Lord Atkinson in Rex
v. Halliday (1), preventive detention' being a precautionary
measure, "it must necessarily proceed in all cases to some
extent on suspicion or, anticipation as distinct from
proof", and it must be capable of being employed by the
executive government in sudden emergencies on unverified
information supplied to them by their police or intelligence
officers. the Government, acting honestly and in good faith
make an order being "satisfied" on such information, however
lacking in particulars, that a person should be detained
in the public interest, as they have been empowered by
Parliament to do, then all that article 22 (5) requires of
them is to communicate as soon as may be the grounds which
led to the making of the order, to the person concerned, and
to give him the earliest opportunity of making any represen-
tation which he may wish to make on the basis of what is
communicated to him. If such communication is made and such
opportunity is given the detaining authority will have
complied with the procedure prescribed by the Constitution,
and the person under detention cannot complain that he has
been deprived of his personal liberty otherwise than in
accordance with the procedure established by law. I can
find nothing in article 22, clause (5), to warrant the view
that the grounds on which the order of detention has been
made must be such that, when communicated to the person
detained they are found by a court of law to be sufficient
to enable him to make what the court considers to be an
adequate representation. The right to be produced before a
Magistrate and to consult and be defended by a legal practi-
tioner is expressly denied by the Constitution itself to a
person under preventive detention [vide article 22 (1), (2)
and (3)3 and this. Court held in Gopalan's case(2) that
there was nothing in the Constitution to entitle him to a
hearing even before the detaining authority. All this
underlines the executive character of the function exercised
by
(1) [1917] A.C. 260, 275. (2) [1950] S.C.R. 88,
194
the authority which does not in any way embark on a judicial
or quasi-judicial inquiry. In such circumstances the repre-
sentation which the person detained is allowed to make to
the Government, which is constituted the judge in its own
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cause, cannot be assumed to be similar in scope or purpose
to a defence against a formulated charge in a court of law.
The argument, therefore, that the right of making a repre-
sentation should be made effective in the sense that such
person should be enabled to defend himself successfully if
possible, and, for that purpose, the detaining authority
should communicate to him the necessary particulars on pain
of having the order quashed if such particulars are not
furnished, proceeds on a misconception of the true position.
Perhaps the most cogent reason for rejecting the argu-
ment is to be found in the language and provision of clause
(6) of article 22. "Nothing in clause (5)", that is to say,
neither the right to be informed of the "grounds" of deten-
tion nor the right to make a "representation" shall
"require" the detaining authority to disclose facts which
the authority "considers" should not be disclosed in the
public interest. In other words, clause (5) should not be
taken to import an obligation to provide particulars which
the authority is given an absolute discretion to furnish or
withhold.
I cannot understand how it can be claimed, in the face
of clause (6), that it is incumbent on the executive govern-
ment to communicate particulars which a court of law consid-
ers necessary to enable the person detained to make a repre-
sentation. It cannot be compulsory to furnish what the
authority is given an uncontrolled power to decide to give
or to refuse. The combined effect of clauses (5) and (6)
is, to my mind, to require the detaining authority, to
communicate to the person affected only such particulars as
that authority and not a court of law, considers sufficient
to enable the said person to make a representation.
It is worthy of note that in the well-known English case
of Liversidge v. Anderson C), the existence of a
(1) [1942] A.C. 206.
195
similar privilege was regarded as a "very cogent reason" for
holding that the words "If the Secretary of State has rea-
sonable cause to believe" did not raise a justiciable issue
as to the existence of such cause as an objective fact.
Viscount Maugham observed "It is beyond dispute that he can
decline to disclose the information on which he has acted on
the ground that to do so would be contrary to the public
interest, and that this privilege of the Crown cannot be
disputed. It is not ad rem on the question of construction
to say in reply to this argument that there are cases in
which the Secretary of State could answer the attack on the
validity of the order for detention without raising the
point of privilege. It is sufficient to say that there must
be a large number of cases in which the information on which
the Secretary of State is likely to act will be of a very
confidential nature. That must have been plain to those
responsible in advising His Majesty in regard to the
Order in Council, and it constitutes, in my opinion, a very
cogent reason for thinking that the words under discussion
cannot be read as meaning that the existence of 'reasonable
cause' is one which may be discussed in a court which has
not the power of eliciting the facts which in the opinion of
the Secretary of State amount to 'reasonable cause'."
There was considerable discussion as to the meaning of
the words "grounds" and "representation" used in clause (5).
These are words of very wide connotation and, in the view I
have expressed, it is unnecessary to define them. It may,
however, be noted that clauses (5) and (6) are not mutually
exclusive in the sense that, when clause (6) is invoked,
clause (5) ceases to be applicable. When, therefore, the
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detaining authority withholds the material facts under
clause (6)and communicates to the person detained the
grounds of detention, which in that case must be necessari-
ly vague, it would still be communicating to him the
"grounds" on which the order has been made, and such repre-
sentation as the person may wish to make on the basis of
that communication would
196
still be a "representation ", within the meaning of clause
(5). This shows that no precise connotation can be at-
tributed to the terms "grounds" and"
re- presentation" as used in clause (5), for in certain
cases at least, the one can be vague and the other inade-
quate from the point of view of the person detained and,
on a question of construction they need not be different in
other cases.
It was suggested in the course of the argument that
clause (5) dealt with two distinct and independent matters,
namely, (1) the communication of the grounds of detention,
and (2) the affording of an opportunity to make a represen-
tation against the detention, and that the grounds communi-
cated need not have any necessary relation to the represen-
tation provided for. the right to make a representation, it
was said, imported, by implication, an independent obliga-
tion on the part of the authority to furnish the person
detained with sufficient particulars and details of the
accusation against him apart from and in addition to the
obligation expressly imposed on the authority to communicate
the grounds on which the order has been made, for the reason
that without such particulars no adequate or effective
representation could be made' against the order, and though
the sufficiency of the Grounds on which the order was based
had been held not to be open to judicial examination, there
was no reason why the sufficiency of the further communica-
tion implied in the provision for representation should not
be justiciable. The different time-limits fixed for -he
performance of the duties imposed by clause (5) on the
detaining authority are said to support this argument. The
construction suggested is, in my opinion, strained and
artificial and cannot be accepted. The collocation in the
same clause of the right to be informed of the grounds of
detention and the right to make a representation against it
indicate, to my mind, that the grounds communicated are to
form the basis of the representation and, indeed, are in-
tended mainly, if not solely, for that purpose. To suggest
that, apart from those grounds, and right of making a repre-
sentation
197
imports, by necessary implication, a further obligation to
give such details and particulars as would render that right
effective is, in my opinion, not to' construe the clause in
its natural meaning but to stretch it by the process of
implication, so as to square, with one's preconceived no-
tions of justice and fairplay. No support for this construc-
tion can be derived from the provision of distinct time
limits for the communication of the grounds and the afford-
ing of opportunity for representation. as that can be ex-
plained by the different degrees of urgency required in the
two cases. The grounds are to be communicated "as soon as
may be" which means as soon as possible and imports a much
higher degree of urgency than what is implied in affording
the "earliest opportunity" which, I take it, means affording
writing and communication facilities to the person under
detention as soon as he is ready and desires to make the
representation.
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While clause (5) does not allow the authority, after
making the order of detention and communicating the grounds
of such order, to put forward fresh grounds in justification
of that order, I can find nothing in that clause to preclude
the authority furnishing particulars or details relating to
the grounds originally communicated, or the person under
detention availing himself of such particulars and making a
better or a further representation. Nor is there anything
to prevent such person from asking for, or the authority
from providing, further and better particulars of those
grounds where it is in a position to do so. But the attempt
in these and similar proceedings has always been not to
secure the necessary particulars but to shift the arena of
the contest to the court which, as Lord Finlay remarked in
the case already referred to, is the least appropriate
tribunal for investigating what must largely be matters of
suspicion and not proof and which, for that very reason,
might afford the relief hoped for without being in posses-
sion of all the facts.
Reference was made to the decisions of several High
Courts dealing with the necessity of furnishing particulars
of the grounds of detention. But those decisions
198
turned on the provisions of the various Provincial Public
Safety Acts which were passed before the commencement of the
Constitution and which, in most cases, specifically provided
for the communication of particulars. Those decisions are of
no assistance to the respondent as neither in article 22 nor
in the Act is there any express provision that particulars
of the grounds of detention should be given to the person
detained.
Our attention was called to the decision of this court
in Ishwar Das v. The State(1) as an instance where this
court considered the grounds of detention to be vague and
directed the release of the petitioner in that case from
detention under the Act. As pointed out in the brief judg-
ment in that case, no arguments were addressed on the point
and the case was disposed of on the view prima. facie sup-
ported by the decisions already referred to that, if the
grounds were too general and vague to enable the person
under detention to make a representation, he was entitled to
be released. No value can therefore be attached to that
decision as a precedent.
In the course of the debate it was repeatedly urged that
this court should be jealous in upholding the liberty of
the subject which the Constitution has guaranteed as a
fundamental right and must not adopt a construction of
article 22 (5) which would rob the safeguards provided
therein of all their efficacy. I am profoundly conscious of
the sanctity which the Constitution attaches to personal
liberty and other fundamental rights and of the duty of this
court to guard against inroads on them by the legislature or
the executive. But when, as has been stated, the Constitu-
tion itself has authorised preventive detention and denied
to the subject the right of trial before a court of law and
of consulting or being defended by a legal practitioner of
his choice, providing only certain procedural safeguards,
the court could do no more than construe the words used in
that behalf in their natural sense consistently with the
nature, purpose and scheme of the measure thus authorised,
to ascertain what
(1) Not reported.
199
powers are still left to the court in the matter. It is in
this light that I have endeavoured to construe clause (5)
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and, for the reasons indicated above, I have come to the
conclusion that it is not the province of the court to
examine the sufficiency of the grounds for the purpose of
making a representation, a matter left entirely to the
discretion of the executive authority. An argument in sup-
port of the liberty of the subject has always a powerful
appeal but the court should, in my opinion, resist the
temptation of extending its jurisdiction beyond its legiti-
mate bounds.
DAS J.--This appeal from a decision of the Bombay High
Court raises a very important question as to the sufficiency
of the grounds of an order of detention under the Preven-
tive Detention Act, 1950. The question depends, for its
answer, on a correct interpretation of clauses (5) and (6)
of article 22 of our Constitution which have been reproduced
in section 7 of the Act. A similar question has also been
raised in another appeal filed in this court by one hundred
detenus from the decision of a Bench of the Calcutta High
Court, being Case No. 24 of 1950 (Tarapada and Others v. The
State of West Bengal)(1). As the view I. have taken as to
the true meaning and effect of the relevant provisions of
the Constitution and of the Act has not commended itself to
the majority of my colleagues, I express it with a certain
amount of diffidence arising out of the high regard I have
for their opinions.
Under section 3 (1) (a) of the Act the authority con-
cerned can make an order of detention only if he is satis-
fied that, with a view to preventing a person from acting in
a manner prejudicial to one or more of the matters referred
to in sub-clauses (i), (ii) and (iii) of clause (a), an
order should be made. What materials will engender in the
mind of the authority the requisite satisfaction under
section 3 (1) of the Act will depend on the training and
temperament and the habitual mental approach of the person
who is the authority to (11) Reported infra at p. 212
(1) Reported infra at p.212.
26
200
make the detention order. The authority concerned may be a
person who will not derive the requisite satisfaction
except on very precise and full information amounting almost
to legal proof or he may be a person equally honest who will
be so satisfied on meagre information which may appear to
others to be very vague or even nebulous. If the authority
is a person of the first mentioned type, then the "grounds"
on which he will make the order will necessarily be more
precise and fuller in particulars than the "grounds" on
which an order may be made by the authority who is a person
of the second mentioned type. The "grounds" on which the
authority who is a person of the first mentioned type makes
an order of detention create no difficulty, for such grounds
are quite precise and ample, and, when communicated to the
detenu, will clearly enable him to appreciate the reasons
for his detention and to make his representation. We are,
however, concerned with the "grounds" on which an order of
detention may be made by the authority who is a person of
the second mentioned type who may derive the requisite
satisfaction from the conclusions which he may draw from the
available information, which may not be precise or ample
but on which, having regard to his source of information,
the authority may honestly feel safe to rely and to act.
This last mentioned type of grounds" will, in the following
discussion, be referred to as "vague grounds". The question
for our decision is whether an order of detention made in
good faith on such "vague grounds" is valid when it is made
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and whether if valid when made, becomes invalid because
these very grounds, when communicated to the detenu, are
found to be insufficient to enable him to make a representa-
tion.
The first question urged by the learned counsel for the
detenu is that an order of detention made upon grounds which
are too vague to enable the detenu to to make a representa-
tion against the order is bad ab initio. The argument is
thus formulated. Article 22 (5) requires two things, name-
ly, first, that the authority
201
making the order of detention shall, as soon as may be,
communicate to the detenu the grounds on which the, order
has been made and, secondly, that the authority' shall
afford him the earliest opportunity to make a representation
against the order. The two requirements'are correlated. The
object of the communication of the grounds, according to the
argument, is to enable the detenu to make a representation
against the order of detention and the combined effect of
the two constitutional requirements is that the grounds on
which the order is made must be such as will, when communi-
cated to the detenu, enable him to make a representation. If
the grounds communicated are too vague being devoid of
particulars, then no representation can be made on the basis
of them and if no representation can be made on the basis of
these grounds, no order of detention could properly have
been made on those grounds, for it is the grounds on which
the order had been made that have to be communicated to the
detenu so as to enable him to make a representation. The
argument, shortly put, is that the implied requirement that
the grounds must be such as will enable the detenu to make a
representation also indicates the quality or attribute of
the grounds on which the order of detention may be made.
Whether the grounds satisfy the requirements of article 22
(5) is not left to the subjective opinion of the authority
which makes the order of detention but an objective test is
indicated, namely, that the grounds must be such as will
enable the detenu to make a representation which quite
clearly makes the matter justiciable. If the court finds
that no representation may be made on account of the vague-
ness of the grounds. the court must also hold that the order
made on such vague grounds cannot be sustained. The next
step in the argument is that the provisions of the Preven-
tive Detention Act, 1950 (Act IV of 1950), which was passed
after the Constitution came into effect must be read in the
light of article 22 (5) as construed above. So read, the
satisfaction of the authority referred to in section a of
the Act cannot be the subjective satisfaction
202
of the authority, for the satisfaction must be
founded on grounds which, when communicated later on, will
enable the detenu to make a representation which postulates
an objective test. This involves that section 3 (1) (a) of
the Act should be read as if the words "on grounds which,
when communicated to him, will enable him to make a repre-
sentation such as is mentioned in section 7 of this Act"
occurred after the words "if satisfied with respect to any
person" and before the words "that with a view". If such
interpolation of words be not permissible according to
accepted canons of construction, then it must be held that
in so far as section 3 of the Act makes an order of deten-
tion dependent on the subjective satisfaction of the author-
ity, the section is unconstitutional, being repugnant to the
provisions of article 22 (5) and the necessary intendment
thereof. The argument so formulated is attractive but on
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closer scrutiny will be found to be unsound. Before the
Constitution came into force there were laws for the mainte-
nance of public security in almost all the provinces and in
those laws there were provisions similar to the provisions
of section 3 of the Preventive Detention Act, 1950. It was
held in many cases that in the absence of bad faith, and
provided the grounds on which the authority founded its
satisfaction had a reasonable relation or relevancy to the
object which the legislation in question had in view, the
satisfaction of the authority was purely subjective and
could not be questioned in any court of law. The decision
of the Federal Court in Machindar Shivaji Mahar v. The
King(1) is one of such decisions. Vagueness of the grounds
on which satisfaction of the authority is founded cannot be
treated as on the same footing as the irrelevancy of the
grounds, unless the vagueness be such as may, by itself, be
cogent evidence in proof of bad faith. If the grounds are
relevant to the objects of the legislation and if there is
no proof of bad faith, then mere vagueness of the grounds
cannot vitiate the satisfaction founded on them. The satis-
faction being subjective, the court
(1) [1949-50] F.C.R. 827 at p.831,
203
cannot arrogate to itself the responsibility of judging the
sufficiency or otherwise of the grounds. It is true that at
the time those decisions were given the Constitution had not
come into force and there were no fundamental rights, but
these well established principles were recognised and adopt-
ed by all members of this court in Gopalan's case(1) which
came up for consideration after the Constitution had come
into force. In that case it was held unanimously that under
section 3 of the Preventive Detention Act, 1950, the satis-
faction of the authority was purely subjective and could
not, in the absence of proof of bad faith, be questioned
at all and that section 3 was not unconstitutional. It
is true that the arguments now advanced were not advanced in
exactly the same form on that occasion, but that fact makes
no difference, for the arguments have no force as they are
founded on the assumption that the grounds on which an order
may be made must be such as will, when communicated, be
sufficiently full and precise so as to enable the detenu to
make a representation. I find no warrant for such an as-
sumption. Indeed, the fact that this court has held that
section 3 of the Act which makes the satisfaction of the
authority a purely subjective matter is not unconstitutional
clearly destroys the cogency of the argument formulated as
hereinbefore stated. The decision in Gopalan's case(1) as
to the validity of section 3 of the Act makes it impossible
to accept this argument.
It is next urged that even if the initial order was not
invalid when made because satisfaction was a purely subjec-
tive matter for the authority alone and the court cannot
consider or pronounce upon the sufficiency of the grounds
on which the satisfaction was based, nevertheless, the
continuance of the detention becomes unlawful if the same
grounds when communicated, be found to be vague and devoid
of particulars so as to render the making of a representa-
tion by the detenu somewhat difficult. The argument is that
although the vagueness of the grounds is not
(1) [1950] S. C. R. 88.
204
justiciable at the initial stage when the order is made and
so the order cannot be said to be invalid ab initio,
the same vagueness of the ground is nevertheless justi-
ciable at the later stage when they are. communi-
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cated, so that if vagueness renders the making of a
representation difficult the continuance of the detention at
once becomes illegal. Under article 21 no person can be
deprived of his life or personal liberty except
according to procedure established by law. As ex-
plained in Gopalan's case(1) procedure established by
law means procedure enacted by the Legislature, i.e.,
State-made procedural law and not any rule of natural
justice. It was pointed out that the implication of
that article was that a person could be deprived of his
life or personal liberty provided such deprivation
was brought about in accordance with procedure
enacted by the appropriate Legislature. Having so pro-
vided in article 21, the framers of our Constitution
proceeded to lay down certain procedural requirements
which, as a matter of constitutional necessity, must be
adopted and included in any procedure that may be
enacted by the Legislature and in accordance with which
a person may be deprived of his life or personal liberty.
Those requirements are set forth in article 22 of the
Constitution. A perusal of the several clauses of that
article will show that the constitutional require-
ments of procedure which must be incorporated in any
law for preventive detention relate to a stage after
the order of detention is made under section 3 of the
Preventive Detention Act, 1950. The order of
detention being thus in accordance with procedure
enacted by law which is not inconsistent with, any of the
provisions of Part III of the Constitution applica-
ble to that stage, the order of detention cannot be
questioned unless there is proof of bad faith, either
direct or indirect. We have, therefore, to consider
whether the detention validly brought about becomes
unlawful by reason of subsequent non-compliance with
the procedural requirements laid down in clause (5) of
article 22, for if there is such non-compliance, the
(1) [1950] S.C.R. 88.
205
detenu from that moment must be held to be deprived of his
liberty otherwise than in accordance with procedure estab-
lished by law and will, therefore, be entitled to be re-
leased.
I am prepared to concede that there is some correla-
tion between the two parts of article 22 (5), namely, the
communication of the grounds on which the order has been
made and the making of the representation by the detained
person. The Constitution insists on the communication of the
grounds on which the detention order has been made for some
purpose. That purpose obviously is to apprise the detenu of
the reasons for the order of his detention. The communica-
tion of the grounds will necessarily enable him, first, to
see whether the grounds are at all relevant to the object
sought to be secured by the Act. If they are not, then they
were no grounds at all and no satisfaction could be founded
on them. The very irrelevancy of the grounds will be a
cogent proof of bad faith on the part of the authority so as
to make the order itself invalid. In the next place, the
disclosure of the grounds will tell the detenu in which
class his suspected activities have been placed and whether
he is entitled to the benefit of having his case scrutinised
by the Advisory Board. Finally, the communication of the
grounds on which the order has been made will tell him
generally the reasons for his detention, and will, there-
fore, be helpful to the detained person in making his repre-
sentation which is also provided for in the tatter part of
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clause (5). The fact that there is correlation between the
two parts of clause (5) does not, however, carry us any
further. There is no warrant for assuming that the grounds
to be communicated to the detenu are to be a formal indict-
ment or a formal pleading setting forth a charge or a case
with meticulous particularity nor is there any warrant for
the assumption that the representation has to be in the
nature of a defence or written statement specifically deal-
ing with the charge or the case. Indeed, the idea of a trial
is foreign to the law of preventive detention. The very
fact that the provisions of clauses (1) and (2) of article
22
206
do not apply to preventive detention clearly excludes the
idea of a trial before a tribunal. As I have said, the
grounds will generally indicate the conclusions drawn by
the appropriate authority with respect to the suspected
activities of any particular person and those grounds, when
communicated, will enable the detenu to make a representa-
tion, for he can easily refer to and set forth his real
activities and represent that all his activities are inno-
cent and cannot possibly give rise to the suspicion indicat-
ed in the grounds. To say that clause (5) itself indicates
that the grounds must be such as will enable the detenu to
make a representation is to read into clause (5) something
which is not there. It is a re-statement of the first argu-
ment in a new form and is fallacious. In the first place,
clause (5) does not in terms say that the authorities shall
communicate such grounds as will enable the detenu to make a
representation. In the second place, the decision in Gopa-
lan's case(1) militates against this argument, for if the
sufficiency of the grounds is not justiciable at the initial
stage when the order is made, as held in that case, it is
wholly illogical to say that the intention of the Constitu-
tion is to make the sufficiency of the same grounds justi-
ciable as soon as they are communicated to the detenu. As
already stated, an order made upon satisfaction founded on
vague grounds is quite valid, if the vagueness is not proof
of bad faith. Under clause (5) the authority is to communi-
cate the grounds on which the order has been made. This
will let the detenu know what operated on the mind of the
authority when it made the order. If the grounds were vague
it is the vague grounds that must be communicated, for it
was upon those vague grounds that the order had been made.
That is the express provision of the first part of clause
(5). This being the express requirement, the implication
that the grounds communicated must be sufficient to enable
the detenu to make a representation cannot be read into the
clause, for that will militate against the express require-
ment. If the order had been made on vague grounds but
(1) [1950] S.C. R. 88.
207
the authority is to communicate precise and well-formu-
lated grounds which will be sufficient for the detenu to
make a representation, then the communication will not be of
grounds on which the order was made but of something more
than what is expressly required. The express provision
must exclude such an inconsistent implied provision. Again,
clause (6)of article 22 gives the authority the right to
claim privilege against disclosure of facts in public inter-
est. Non-disclosure of facts will necessarily make the
grounds, as communicated, extremely vague and devoid of
particulars. If the construction of clause (5) which is
contended for by the detenu's counsel were correct, then the
vagueness of the grounds resulting from the non-disclosure
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of facts under clause will entitle the detenu to be
released, for that vagueness also will render the making of
a representation impossible or difficult. That will mean
that the claim of privilege given to the authority by clause
(6) of article 22 is wholly meaningless and ineffective, and
will defeat its very purpose, for the privilege cannot be
claimed except at the peril of releasing the detenu. Obvi-
ously that cannot be the intention. It must, therefore, be
held that the vagueness of grounds resulting from non-dis-
closure of facts under clause (6) will not invalidate the
order of detention, which was initially valid, on the ground
that no representation can be made on the basis of such
vague grounds. In that case by claiming privilege under
clause (6) the authority can frustrate the claim of justi-
ciability of the sufficiency of the grounds. Further, why
should the vagueness of grounds otherwise brought about
stand on a different footing ? Clause (5) cannot mean one
thing when the privilege is claimed and mean quite the
opposite thing when no such privilege is claimed under
clause (6). The initial order is not justiciable. The
claim of privilege is not justiciable. Why should it be
assumed that the sufficiency of grounds for the purpose of
making a representation was intended to be justiciable ? I
see no logical reason
27
208
for making an assumption which will introduce an objec-
tive test in a matter which is prima facie intended
to be purely subjective.
The argument is then re-stated in the following fur-
ther modified form. Clause (5) of article 22 imposes two
obligations on the authority making an order of detention,
namely, (i) that the authority shall, as soon as may be,
communicate the grounds on which the order has been made,
and (ii) that the authority shall afford the earliest oppor-
tunity to the detenu to make a representation against the
order. If the order was made as a result of satisfaction
derived-in good faith but upon grounds which may be vague,
the order will be perfectly good and cannot be challenged in
any court. Communication of such grounds, even if they are
vague, will satisfy the first obligation imposed upon the
authority. Under the latter part of clause (5) the authori-
ty is also under the obligation to afford the earliest
opportunity to the detenu to make a representation. If the
grounds on which the order has been made were vague, then
the second part of clause (5), independently and without
reference to the first part of clause (5), impliedly imposes
on the authority an obligation to rectify the defect of
vagueness by supplying particulars so as to enable the
detenu to make a representation. Supplying of particulars,
the argument concludes, is implicit in the second part of
clause (5), for without such particulars the detenu is not
afforded the opportunity to make a representation. I am
unable to accept this line of argument. Under the first
part of clause (5) the grounds on which the order has been
made have to be supplied 'as soon as may be.' The measure
of time indicated by the words 'as soon as may be' must
obviously run from the date of detention. Likewise, the
latter part of clause (5) requires affording the detenu the
earliest opportunity to make a representation. From what
terminus a quo is the period indicated by the phrase "earli-
est opportunity "to begin to run ? If that is also to run
from the date of the detention, then the two periods under
the two parts of clause (5),
209
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must necessarily coincide and, therefore, the question of
supplying further particulars after the grounds are supplied
cannot arise. On the other hand, the natural meaning of the
words of the latter part of clause (5), to my mind, is that
the period connoted by the phrase the "earliest opportunity"
begins to run from the time the detenu expresses his desire
or intention to make a representation. The making of a
representation is the right of the detenu. To make or not
to make a representation is his choice. Therefore, it is
only when he decides to make a representation and expresses
his desire or intention to make a representation that the
earliest opportunity is to be afforded to him to make the
desired or intended representation. Now, if the time is to
run after the expression of desire or intention on the part
of the detenu to make a representation, then the earliest
opportunity to be afforded to the detenu can only mean
affording him all physical facilities to carry out his
desire or intention, for the detenu has decided to make his
representation without any further particulars. According
to the language used in the latter part of clause (5), there
is no express provision for supplying particulars. Suppose
the grounds on which the order was made and which were
communicated to the detenu under the first part were quite
precise and sufficient to enable the detenu to make a repre-
sentation, then affording him the earliest opportunity to
make the representation can only mean giving him all physi-
cal facilities to do so, e.g., by supplying him with paper,
pen and ink and when the representation has been drawn up by
him, by forwarding the same with due despatch. In such a
case there is no question of supplying further and better
particulars. Suppose, again, that the grounds on which the
order has been made and which have been communicated to the
detenu are regarded by the authority to be quite precise and
sufficient for making a representation, is the authority to
anticipate that the detenu may find these grounds insuffi-
cient or that being moved in that behalf the Court may
consider them insufficient and
210
then, as soon as the detenu expresses his desire or inten-
tion to make a representation. is the authority to keep
quiet and take the risk of the court releasing the detenu
for the vagueness of the grounds or is he to tell the detenu
"just wait a little; I think the grounds which I have
communicated to you are quite precise and sufficient; lest
you or the court find the grounds insufficient for making a
representation, I shall supply you with further and better
particulars so as to enable you to make the representation
?" The position thus stated is unreal on the face of it. In
my opinion, on a plain reading of clause (5) there is no
justification for assuming that a second communication of
particulars is contemplated either under the first part or
under the second part of clause (5). This does not,
however, mean that the authority may not supply particulars
either suo motu or on the application of the detenu. All
that I say is that clause (5) imposes no constitutional
obligation on the authority to supply particulars so as
to remove the vagueness of the grounds or to enable the
detenu to make a representation, and non-supply of
further particulars does not constitute an infraction of
any fundamental right.
It is said that clause (5) of article 22 construed in
the way suggested above, would render that clause nugatory
for it will then really guarantee no fundamental right at
all. I respectfully differ from this view for the criticism
does not appear to me to be well founded. Communication of
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the grounds, even if vague, will none the less be helpful
to the detenu in the several ways I have already mentioned
and, therefore, the right to have the grounds on which the
order has been made communicated to him is a valuable right
which has been recognised as a fundamental right. Likewise,
the right to make a representation is a valuable right which
is guaranteed by the Constitution. These rights remain
unaffected. If the the provisions of clause (5) of article
22 of our Constitution on a correct interpretation thereof
are found to be inadequate for the protection of the liberty
of
211
the detenus it is their misfortune. The Constitution which
the people have given unto themselves is the supreme law and
must be upheld and obeyed whether' or not one likes its
provisions, inhibitions and necessary implications. The
court can only draw the, attention of the Parliament to the
lacuna or defect, if any, in the Constitution and in the Act
so that the lacuna may be supplied or the defect remedied in
the constitutional way.
Our attention has been drawn to a number of cases where
under various provincial laws and before the Constitution
the different High Courts have directed the release of the
detenu on the basis of the vagueness of the grounds. Those
decisions are, however, distinguishable because they were
based on legislation which required the communication not
only of grounds but also of particulars. The omission from
our Constitution of the provision for communicating the
particulars in addition to the grounds which were to be
found in those laws is significant, for it may be deliber-
ate. Apart from this, however, those decisions do not
appear to me to have any bearing on the correct interpreta-
tion of our Constitution or of the Preventive Detention Act.
In Iswar Das v. The State(1) the question was not raised or
argued as it was made clear in the judgment itself.
In view of what I have stated above, I am of the opinion
that as the grounds originally communicated to the detenu
were relevant to the objects which the Act had in view and
as there is no proof of mala fides the obligations cast
upon the authorities under article 22 (5) which have been
reproduced in section 7 of the Preventive Detention Act have
been fully complied with. Even according to the views
expressed by the majority of my colleagues I would be pre-
pared to hold that the particulars subsequently supplied
along with the grounds originally supplied fully enable the
detenu to make his representation. In my opinion there has
been no contravention of the fundamental rights of the
detenu. I would, therefore,
(1) Not reported.
212
allow this appeal and reverse the decision of the Bombay
High Court.
Appeal allowed.
Agent for the appellant: P.A. Mehta.
Agent for the respondent: V.P.K. Nambiyar.
The Supreme Court's decision in The State of Bombay vs. Atma Ram Sridhar Vaidya is a foundational ruling that meticulously dissects the core principles of preventive detention law and the procedural safeguards enshrined in Article 22(5) of the Constitution. This landmark judgment, prominently featured on CaseOn, remains a cornerstone for understanding the delicate balance between state security and individual liberty, clarifying the rights of a detained person to be informed of the grounds for their detention and to make an effective representation against it.
The case revolved around Mr. Atma Ram Sridhar Vaidya, who was arrested on April 21, 1950, under the Preventive Detention Act, 1950. A week later, on April 29, he was provided with the sole ground for his detention, which stated:
"That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay."
Mr. Vaidya challenged his detention by filing a habeas corpus petition before the Bombay High Court. He argued that the ground supplied was excessively vague, as it failed to mention any specific time, place, or details of the alleged sabotage. This vagueness, he contended, made it impossible for him to make a meaningful representation, thereby violating his fundamental rights.
While the petition was pending, the Commissioner of Police sent a second communication to Mr. Vaidya, providing "further particulars." This communication specified that the alleged activities took place between January 1950 and the date of his arrest. The Bombay High Court, while acknowledging that the particulars, if provided initially, might have validated the detention, ultimately ordered Mr. Vaidya's release. The High Court reasoned that the initial ground was indeed vague and that this defect could not be cured by supplying particulars at a later stage.
The State of Bombay appealed to the Supreme Court, bringing forth critical questions of constitutional law:
Article 22(5) of the Indian Constitution forms the bedrock of this case. It mandates that a person under preventive detention must be afforded two key procedural rights:
The central debate was whether these were two separate rights or a single, integrated right where the sufficiency of the first (grounds) determined the validity of the second (representation).
The Court reiterated a well-established principle: the decision to detain a person under the Preventive Detention Act is based on the "subjective satisfaction" of the executive authority. A court cannot substitute its own judgment for that of the authority or examine the sufficiency of the material that led to that satisfaction, except in cases of proven mala fides (bad faith) or where the grounds are completely irrelevant to the objectives of the Act.
The Supreme Court, in a majority decision delivered by Chief Justice Hiralal Kania, overturned the Bombay High Court's ruling and provided a comprehensive analysis of Article 22(5).
The Court held that the two rights conferred by Article 22(5) are distinct, though interconnected.
This was the most crucial part of the judgment. The Court drew a vital distinction between "grounds" and "particulars":
The Court ruled that while new or additional grounds cannot be added later, the detaining authority can supply further particulars to supplement the original grounds. This subsequent communication does not vitiate the detention, provided it does not introduce new grounds and is supplied in a timely manner so as not to prejudice the detenu's right to make a representation at the "earliest opportunity."
For legal professionals grappling with the nuances of such distinctions, the 2-minute audio briefs on CaseOn.in offer a quick and effective way to analyze these specific rulings on the go.
The Court clarified that a ground cannot be considered vague merely because the only possible answer is a simple denial. A ground is deemed vague only if it is so indefinite that a person cannot intelligently understand it and gather the necessary information to make a representation. Whether a ground is vague or not is a justiciable issue to be decided by the court based on the facts and circumstances of each case.
The Supreme Court concluded that the Bombay High Court had erred in its approach. The subsequent communication by the Commissioner of Police contained only particulars of the original ground and did not introduce any new grounds. By providing these details, the authority had enabled Mr. Vaidya to make an effective representation. Therefore, there was no infringement of his fundamental rights under Article 22(5).
The appeal by the State of Bombay was allowed, and the High Court's order to release the respondent was set aside. The detention was held to be legal.
State of Bombay v. Atma Ram Vaidya is a seminal case in constitutional and administrative law for several reasons:
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. It is a summary and analysis of a judicial pronouncement and should not be relied upon as a substitute for professional legal counsel.
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